Although federal, state and local governments are empowered to take private property under the concept of eminent domain, they may not do so without restrictions and limitations. For instance, property owners must be given just compensation for the loss of a portion or all of their property. Additionally, the taking of the property must be justified and necessary.
When the population of a town or other municipality grows, it naturally follows that the government will be compelled to improve and expand the community’s public works. These projects can include many things like:
- Addition or expansion of mass transit systems
- Installation of utility lines
- Construction of new public schools
- Widening of roads and highways
- Development of new parks
- Improvement of freeways with a new interchange
Each of these projects can be said to improve the community’s overall livability, which is likely to benefit the general public. Accordingly, these projects could easily receive government approval for taking property via the local eminent domain laws. Existing private homes, commercial buildings and industrial installations all may be affected by these community projects. However, the government must meet the necessity requirement as well as offering just compensation.
Eminent domain justification may be satisfied in a number of ways. Any government entity may establish its own rules and qualifications for the necessity requirement. In some jurisdictions, the government agency that is overseeing the project must prove the necessity requirement before receiving approval to proceed with the eminent domain action.
Usually, the government agency must establish that the property they want to acquire is necessary for the project. In fact, the entire burden of proving the necessity of taking that piece of private property rests on the government agency. It is the right of the landowner to protest the taking by asserting that the condemnation action is not necessary or justified. These are extraordinarily difficult cases for private property owners to win because the government agency generally must prove eminent domain justification before proceeding with taking the property. This means that unless the due process was ignored or another technicality interferes with the legality of the taking, it will be virtually impossible for the property owner to prevail.
Still, some landowners have managed to prevent a taking or to limit the amount of property that is taken by a government agency by filing a protest or lawsuit. If the court or other authority finds in favor of the property owner, then the taking may be either entirely prevented or modified to include less of the plaintiff’s parcel of land.
Home and business owners who have received a notice about an upcoming eminent domain action would be wise to consult with real estate and legal professionals who have knowledge in this area. In their enthusiasm for new public improvement projects, government agencies have shown a tendency to be overzealous in their need to assume control of private property. Unless the owners become educated about their rights and compel the government to demonstrate the justification or necessity of the taking, they may find themselves on the receiving end of a bad deal.
Government agencies may overestimate how much land is needed to complete a particular project. Unless citizens demand substantiation of the necessity for taking the land, the government is likely to abuse its power. In fact, challenging the necessity of the eminent domain action is one of the only methods by which the taking can be stopped, even if only temporarily. The issue of just compensation is raised far more frequently in administrative and judicial settings, but these challenges do not put a stop to the eminent domain proceedings. However, if a property owner claims that there is no eminent domain justification, they may be able to stop or at least stall the proceedings.
The decision-making authority may decide that the government has overstepped its bounds when it comes to the amount of land that is needed to satisfy the public purpose. This may mean that the owner retains all or at least a portion of their land. Even if the decision does not go in favor of the owner, they will at least know that the government was acting within its legal rights by proving the necessity of the taking.
The mere existence of eminent domain laws is enough to make most people wary. The knowledge that a federal, state or local government entity could swoop in and “take” private property is certainly unsettling. While most people are aware that the land on which a private home or a business is located could potentially be claimed by the government for public use, most people do not know that other types of property may also be vulnerable. Eminent domain property to be taken actually covers a relatively broad range of both tangible and intangible items.
Government agencies most frequently seek land in eminent domain proceedings. Typically, they need the land in order to build new facilities or public works that will be of benefit to the population at large. Examples of such projects might include:
- Police stations
- Public schools
- New or expanded roadways and intersections
- Construction of a new water treatment plant
- Expansion of utility lines and services
Note that all of these uses appear to be justified as far as being in the best interests of the public. However, in a controversial U.S. Supreme Court decision, the justices ruled that the City of New London was within its rights when it took Susette Kelo’s land to make way for a new residential development. Kelo argued that giving her land to a private development company did not constitute “public use,” but the court disagreed, arguing that the economic stimulus provided by the new construction would be of benefit to the entire community. This high-profile case is why an increasing number of people are aware of eminent domain property to be taken, and why property owners are increasingly on guard when the government raises this subject.
Government agencies do not restrict their eminent domain actions to vacant plots of land. They may also lay claim to real estate like houses, office buildings or even a company’s corporate headquarters. Usually, they seek to demolish the real estate so that they can build whatever structures are necessary for the stated public purpose. However, it is not unheard of for the existing structures to be occupied for the use of the public.
Most people are well aware that eminent domain property to be taken includes real estate and land. Fewer know that the government has the right to take virtually anything else as well. This can range from a company’s inventory of products to a private citizen’s vehicle. Other, intangible items may be obtained through eminent domain as well. More than one government entity has acquired a company’s registered trademark or a trade secret in the name of the public good. Some inventors have seen their innovations taken from them in an eminent domain action when the government asserts that the invention will be used for the public good. In short, any tangible or intangible item may be seized by the government if they can justify that taking it is for the benefit of the public.
Of course, no property of any description may be taken by the government without providing just compensation to the owner. The problem is that it is generally not easy to determine exactly what constitutes “just” compensation. That is especially true when it comes to intangible items like a company’s registered trademark. How is it possible to place a dollar value on something that is not actually sold in the marketplace?
Eminent Domain Property to be Taken
When an owner of any type of property receives a “Notice of Intent” from a government entity, it is essential that they immediately seek the advice of knowledgeable real estate and legal experts who can help them interpret the notice and formulate an appropriate response. It is rarely advisable for people to attempt to negotiate with the government agency on their own. This is because the government will have various professionals helping them to establish a claim to the property. They likely have sufficient depth of resources to easily overpower the average individual or company. Accordingly, the only sensible thing to do is to hire experts who have the right kind of knowledge and experience.
Placing a value on property that could range from a new invention to a parcel of farmland is no easy task. The government will ask its own experts to weigh in with opinions about what constitutes just compensation. It is only fair that the owner of the private property obtain opinions from other experts to be certain that the compensation they receive is just.
Similarly, negotiating with government representatives is loaded with pitfalls for the average citizen. The private owner will find themselves up against experienced personnel who engage in high-stakes negotiations for a living. It is far better for the private property owner to hire an expert of their own who can negotiate on their behalf.