How to Fight Eminent Domain

Technically, a property owner cannot refuse eminent domain because the Fifth Amendment to the U.S. Constitution allows the government to legally take private property for public use as long as it pays ”just compensation” for it. But there are ways to challenge an eminent domain claim, with some more likely to succeed than others.

Rhonda Fisher, a licensed real estate broker and eminent domain expert, said challenging eminent domain can be tricky.

“Theoretically, it’s possible for an eminent domain lawyer to block a government’s condemnation. But you would have to prove the reasons that the government is taking the property don’t meet the requirements for public necessity or public use,” she said.

The first step in fighting eminent domain is to speak with a real estate attorney who has experience with eminent domain. Some property owners may choose to fight eminent domain on their own, but it’s not recommended.

“Real estate can be very complex and eminent domain is one of those areas. I would highly suggest that any owner receiving a notice of intent to take the property get in touch with a qualified attorney. There is a time to respond, and the complexities of the law may change depending on where a person lives,” Fisher said.

Eminent domain cases often involve negotiation for the value of the property. If the government and property owner cannot agree on the value, the case may go to a jury trial.

If you have a case, your attorney will advise you on the next steps of the process. This may involve proving the government doesn’t have just cause to take your property or that it hasn’t offered you fair value for your property.

Common defenses against eminent domain include:

The government uses eminent domain to facilitate projects intended for the greater good. Historically, this has been for expanding water supplies, constructing public buildings, facilitating transportation or establishing public parks. This takes years of planning.

“Typically, the government is going to have done its homework in their taking of the property. For example, if it’s for a road or to expand a highway, those plans have been well thought out. So, proving the government doesn’t have a just use is difficult,” said Fisher.

Most property owners don’t fight eminent domain. But many disputes arise when the government and property owner disagree on the value of the property. Rarely, instances arise where the government takes private property without paying just compensation. This is called inverse condemnation. Property owners have a right to sue to get just compensation.

“Everyone thinks they know what something is worth. Value and what you are compensated aren’t always the same. The government has a very different view of value versus how an owner may view a property that’s been in their family for 10 generations,” Fisher said.

A lawyer experienced in real estate law and eminent domain can help property owners prepare their case to fight eminent domain, including assembling a team with a licensed real estate broker, licensed property appraiser and other experts to help value the property.

“An attorney can help a property owner understand their rights, but they can also assist in maximizing compensation,” Fisher said. “A lawyer is going to be an ally of your choosing, and they will help you determine what the claim is worth both before and after the taking of the property. Because there is value over your lifetime of ownership of the property.”

In some cases, an attorney may help property owners get thousands of dollars more in compensation than the government initially offered. For example, Fisher has worked with an attorney and appraiser to get hundreds of thousands of dollars above what the government initially offered on a commercial property condemnation.

It’s in the best interest of the property owner to hire an experienced eminent domain lawyer. Not only are property owners entitled to just compensation, but the government must reimburse them for attorney’s fees at the conclusion of the case.