Condemned Property and Government Takings
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What is “Condemnation” of Property?
Condemnation is a process by which private property is taken for the purpose of public use. Prior to the taking, the property is said to be “condemned property”, meaning that it has been marked for destruction or modification in order that the plot of land can be used for public use.
An example of property being condemned is when residential homes are cleared to make way for a wildlife reservation. In this example, the homes are “condemned”, so that the land may serve the public use of a more natural environment.
Who May Condemn Property?
According to the Takings Clause of the U.S. Constitution and principles of eminent domain, the government is allowed to take private property for the purpose of public use. However, the government must reimburse the property owner with “just compensation” for their subsequent loss of property.
Private entities such as corporations or charities may also condemn property if they will be using it for public use. They also must fairly and justly compensate the property owner for the taking. However, private condemnation of land is somewhat rare, as most private entities will obtain land for private use rather than public use. Takings for public purposes are more commonly executed by Federal and state entities.
What Constitutes a “Taking”?
A “taking” by the government resulting in the condemnation of private property is defined as:
- Confiscation or physical occupation of private property
- Government regulation resulting in no economically viable use of the land
A taking does not occur if the occupation advances a “substantial government interest”, such as preserving natural resources. Also, the property owner might not be entitled to just compensation if the occupation does not result in any fundamental change in the ownership of the property.
What is Just Compensation and How is this Calculated?
Just Compensation refers to the amount that the government must pay a property owner for the condemnation of their property. This is typically measured in terms of loss to the owner, not the government’s gain. The amount of loss is measured according to the fair market value standards at the time of taking.
In some court opinions, the process of calculating just compensation involves a determination of the value of the land at the time of condemnation before the public usage begins. Then, a court will attempt to estimate the value of the land after the public use sets in. The difference between the two figures will be approximately the amount of just compensation.
What are the Remedies for an Unjust Taking or Condemnation?
In determining whether a property can be condemned at all, the government will weigh the social value of the project versus the amount that the property will be diminished by. If a court concludes that the loss to the property owner is small compared to the social value of the property, they will usually grant the condemnation.
On the other hand, if it is determined that the amount of loss outweighs the value of the property to society as a whole, the government is not allowed to take the property. If the property owner feels that this balancing test was faulty or unjust, they may be entitled to the following remedies:
- Allow the government to proceed with the project and obtain just compensation through a post-deprivation hearing
- Seek an injunction to terminate the project, while the government pays for any losses resulting from the project
Resisting condemnation proceedings can sometimes be challenging. The property owner would need to prove that their losses would outweigh the benefits gained by society. However, this can be proven using a variety of factors, especially if the private property is unique, has sentimental or historical value, or is difficult to replace.
Do I Need a Lawyer for Issues with Condemned Property?
If you feel that your private property has been marked for condemnation, you should contact a lawyer immediately to determine your rights. You would prevail if it can be shown that the taking is not for public use, or if you have not been offered just compensation in return for your losses. Various Federal and state laws cover the principles of eminent domain and condemnation, and an attorney can thoroughly explain how these apply to you.
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Last Modified: 05-04-2012 01:42 PM PDT
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