Eminent Domain

The government’s right to take or expropriate private property for “public use” is called eminent domain. Common examples include when land is required for public schools, municipal buildings, parks or roads. Eminent domain can also be used to take an easement for utilities, such as sewer and cable lines, that must cross private property.

The U.S. Constitution defines the power of eminent domain. The Fifth Amendment discusses the takings clause and due process and the Fourteenth Amendment outlines compensation.

The due process clause of the Fifth Amendment requires that the government provide proper notification and opportunities for property owners to be heard before taking someone’s property. The government cannot deprive anyone of their property without just compensation. The Fourteenth Amendment ensures that the principle of just compensation applies to state and local governments.

The Supreme Court affirmed eminent domain in two seminal court cases. In Kohl v. United States of 1875, the justices ruled in favor of the government’s right to condemn private property for a post office, calling eminent domain “essential.” In 1896 the court ruled in United States v. Gettysburg Electric Railroad Company that the railroad’s property could be taken to preserve the Gettysburg Battlefield.

The 20th century saw a significant amount of property taken for public works projects, the development of national parks and to create military facilities to support the war effort during World War II. Whether taking property from a private company or private citizen, the government must provide a notice describing the property necessary for the project and your rights of due process.

Typically, the government will give you an offer of the appraised value of your property. Landowners can contest the land value assessment. If you receive a notice and want to fight eminent domain, speak to a lawyer who practices real estate law and understands eminent domain lawsuits.

There are several types of takings under eminent domain in addition to easements. Takings can be physical or constructive (also called regulatory). In the latter, the government restricts the landowner’s rights.

In addition to these types of land takings, there can also be intangible property takings. These have included contract rights and trade secrets. The courts have upheld that the Fifth Amendment’s compensation requirement covers these seizures as well.

The Fifth Amendment does not set out the method for determining the value of the land it takes or what just compensation is in any given circumstances. The standard for just compensation has evolved over years of interpretation in federal and state courts.

The goal is to make the landowner “whole” again as if the taking did not occur, but valuation is often disputed. In the most straightforward case, the amount of just compensation paid is the property’s fair market value that a real estate appraiser or professional is engaged to calculate.

Inverse condemnation is a remedy available to a landowner who is not fairly compensated for property taken under eminent domain. When a government taking causes injury to a property owner who is not fairly compensated, the landowner can sue the government.

Even if there is no physical taking of the property – such as with a regulatory taking – where the government permanently deprives the owner of the economic value of their property or its beneficial uses, they must pay just compensation. If they don’t, they are subject to the remedy of inverse condemnation.

Recently the Supreme Court has refused to consider putting new limits on the government’s power to use eminent domain to take private property for eminent domain purposes. However, other recent cases have communicated that a condemnation should not be a windfall to either the landowner or a private condemnor.

Instead, the condemnor must pay a fair price for the value of the land taken. Legal scholars have identified inequities in takings under eminent domain, both historically and in modern times.

Suppose, for example, that landowners do not receive reasonable notice and an opportunity for a judicial determination of the legality of the taking before the land is taken and the title changes. In that case, it will constitute a breach of due process.

In addition to a right of notice, a landowner has a right to receive a copy of any government appraisals of their land. They may also have the right of negotiation and the right to apply to a court to have the court decide the amount of just compensation.