Resisting Condemnation Proceedings

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What Is Condemnation?

Condemnation is the process of taking private property for public use through the power of eminent domain. When private property is taken by the government, the owner is entitled to receive "just compensation."

What Is Meant By "Just Compensation?"

Just compensation is not a precise concept. It generally means the highest price that the property would bring if it was exposed for sale in the open market for a reasonable period of time, assuming that the buyer had knowledge of all uses and purposes to which it is adaptable. In determining value, courts consider the "highest and best use" of the property. This means that if the property would be more valuable if its use was changed, then you would be entitled to be compensated accordingly.

Why Is My Property Being Taken?

The government can take property for a public use. The “public use” can be a matter of public health and safety. For example, the government can remove blight, property which is dirty, unseemly and in a state of disrepair. “Public use” can also refer to public ownership. For example, governments can take property in order to build highways, military bases, and libraries. These types of structures are typically run by governments and are thus a justification for taking private property. 

The most controversial use of eminent domain is allowing private parties to take the property of other private parties in the name of the public good. The Supreme Court has ruled that economic development by private parties can be a justification for eminent domain. However, this ruling has been limited by numerous federal regulations and state laws.

What Is An Illegal Taking of My Property?

The government cannot take property for non-public use. This mainly applies when the government takes property from one private party and gives it to another private party for that party’s own private use. For example, a city takes a house from B and gives it to corporation C so that C can build an office building. This does not benefit the public or serve a public purpose in any way, so it is not a “public use” permissible by the Constitution.

What Is a “Taking”?

When most people hear “eminent domain,” they picture the government coming in and seizing title of the property. However, a “taking” can be any kind of permanent interference of the property. In one case, for example, the government built a military base close to some houses.

The courts ruled that the homeowners had to be given just compensation because the government planes flying overhead interfered with the homeowner’s use of the property so much that it was a “taking” of their property. Although the government did not actually seize control of the houses, the planes were so loud and flew over so frequently that the homeowners were deprived of their property’s use.

How Do I Know If My Property Has Been Condemned?

Typically you will receive a written offer to acquire the property for money from a government agency. You may also be served with a summons and complaint in condemnation.

How Can I Resist The Condemnation Of My Property?

Whether you should actually resist the condemnation of your property depends on the facts about your property and whether the amount of money offered to you is sufficient to adequately compensate you for the loss of your property. There are two possible ways that you may resist a condemnation proceeding. First, you can resist the taking of your property if it is not for a public use or necessity. Second, you can demand more money if the condemning agency has not offered you "just compensation."

There are also certain procedures which must be followed before property can be taken. Although the exact requirements will differ from state by state, the procedures follow the same basic structure:

  1. The government should attempt to negotiate with the property owners before throwing them out.
  2. The government must petition the courts to ensure due process of law.
  3. Notice of the taking must be given to all persons with interest in the property. This will be more difficult if there is more than one owner.
  4. A hearing must be given to determine if the government has the authority to proceed with the taking. State law will control the outcome of the case.
  5. Just compensation must be determined.

I Want To Resist The Condemnation Of My Property - Do I Need A Lawyer?

Although you are not required to be represented by a lawyer, this is a complicated area of the law. By not hiring a lawyer, you risk not receiving adequate compensation for your property. An experienced real estate lawyer is invaluable if you plan to resist a condemnation proceeding, because he can tell you how strong of a case you have and advise you regarding complicated condemnation matters.

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Last Modified: 04-10-2013 04:10 PM PDT

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