Eminent domain is a power given to the federal, state and local governments from the Fifth Amendment, allowing them to take private property for public use. This may include land, buildings, and even private property. In addition, a government may allow other entities such as railroad and utility companies to also exercise eminent domain for projects which benefit the public. The process of taking the property is called condemnation.
The term “public use” refers to anything which benefits the public, whether it be a neighborhood, community, city or other large groups of people. This may include parks, utilities, gasoline or other products as well as roadways and buildings for the public.
The Fifth Amendment requires the government or other condemning authority to provide just compensation to the property owner according to the value of the property with its highest and best use. This means the value is determined based on how the property could best be used even if it isn’t currently being used in that capacity.
The government is also required to provide notification of eminent domain to the property owner. This allows them to make other arrangements if their residence or business may be affected. They will receive an offer of compensation for the property.
The government first determines that a property needs to be taken for the successful completion of a project. Usually, an ordinance is adopted or other regulations put in place to move forward in the process. The government sends a notification to the property owner with an offer to buy the property. If the owner refuses, the government may have the property condemned. The property owner may go to court to either try to stop the process or change the amount of compensation received. A trial may be necessary to determine the amount of compensation to be deemed fair value of the property.
In some cases, the property owner may be able to stop the condemnation of their property and retain ownership. They would either have to be able to prove the property was not being taken for public use or that the property was not necessary for the completion of the project.
Just compensation refers to the market value of the property. It may also mean compensation for any damages that result from taking the property such as loss of income and moving costs. If only part of the property is taken, payment may be necessary for any damages to the rest of the property. The law allows the property owner to be paid for the highest and best use of the property, which may mean a use other than its current use.
A property owner does not have to accept a compensation offer for their property. If they can prove the property is worth more than the amount being offered, they can file a court order and go to trial. A judge or jury will listen to the evidence and determine an appropriate amount for the value of the property.
Eminent domain power is a complex area of the law. The government has extensive experience in declaring eminent domain and the courts often have a broad interpretation of the law. Because of these reasons, it is important that a property owner hires an attorney experienced in eminent domain to challenge either the right to condemnation or the amount of compensation.