There are certain circumstances in which state or local municipalities can take control of private property. Some common examples of such circumstances include, but may not be limited to:
- Condemned Property: Condemnation is a process in which private property is taken for the purpose of public use. Prior to the taking, the property is said to be “condemned property.” What this means is that it has been marked for destruction and/or modification in order for the plot of land to be used for public use.
- An example of this would be 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 and a healthier world in which to live. Simply put, the government takes control of the land in order to convert it for public use. This also includes instances in which government regulation has rendered a plot of land economically useless;
- Judicial Lien: Lien refers to the right to maintain possession of a property that belongs to someone else, until that person has paid off a debt that they owe. Liens are a specific type of security interest that is placed on an item or property in order to secure a debt or a loan. Most common examples would be a home or automobile loan. Under specific circumstances, a lender may take a lien and sell it when the borrower is unable to make their scheduled payments.
- A judicial lien specifically is often obtained in connection with the final judgment that is issued in a lawsuit between the debtor and creditor. Once the judicial lien has been certified by the court, the debtor is required to forfeit their property, which may then be subject to a judicial sale. Governments can sometimes seize the title of land or property under a lien, which is common in cases involving foreclosure resulting in the judicial sale of property;
- Tax Seizure: Very simply put, the title to land can also be lost due to a failure to pay taxes. When a taxpayer who is also a property owner fails to pay their taxes, the government can legally seize the property;
- Seizure for Private Economic Development: Property can sometimes be seized for the purpose of assisting in certain private development projects. This specific instance of government seizure can be difficult to understand, especially in terms of legality; as such, if you are facing this type of property seizure, you should immediately consult with an attorney; and/or
- Civil Forfeiture: Criminal forfeiture laws allow for the seizure of property only after a conviction beyond a reasonable doubt. Civil forfeiture laws, however, allow the government to gain possession of a person’s property without any determination of guilt if the property is involved with the commission of a crime. Because the property and not the property owner is being sued, none of the rights regarding just compensation, due process, or punishments are triggered.
With the exception of civil forfeiture, whenever the government initiates a taking such as in a condemnation or private taking, they must provide “just compensation” to the land owner. The Supreme Court has ruled that “just” only refers to “the market value of the property at the time of the compulsory taking.”
However, property owners who are facing property seizure should still contest the amount that is being offered, as government agencies rarely offer the fair value of the property on their first seizure attempt. Bartering with the taking government agency can increase the amount of money that is being offered. If the case goes to court, there is a chance that the jury may decrease the compensation.
Can I Contest A Government Seizure Of My Property?
In some cases, resisting condemnation of property by the government is possible. An example of this would be how the plaintiff might seek to show that the condemnation of the property is unjust, or otherwise violates the law in some way. They may successfully do so if the new use would result in some gross injustice, or would violate public policy in some way.
Under these circumstances, the remedy generally involves an injunction. An injunction is a court order which requires termination of the project, as well as a reversion of the land back to the private owner. Alternatively, just compensation may be issued in the form of monetary compensation for the taking of the property.
Liens and tax-related seizures can be considerably difficult to contest, especially if the lien is the result of a clear ruling. Often, a ruling can be challenged if there was some error in the lower court, or if the challenge is based on some aspect of the title deed which could be clarified through a quiet title proceeding. Whether these options are available generally depend on the exact facts involved in each individual case.
In civil forfeiture proceedings, the government must prove that probable cause exists to believe that the property is or was involved in a crime. The owner must then prove that the property actually was not used for an illegal purpose, or that the property’s owner was not involved in such illegal activities. It is important to note that property owners will experience difficulties due to the fact that they must prove their case by a preponderance of the evidence. This can be especially difficult if the police are confiscating evidence, as well as preventing the owner from entering the “crime scene.”
What Else Should I Know About The Government’s Right To Seize My Property?
One of the most controversial uses of eminent domain, or government taking, is allowing private parties to take the property of other private parties in the name of the public good. Although the Supreme Court has ruled that economic development by private parties can be a justification for eminent domain, this ruling has been limited by multiple federal regulations and state laws.
To reiterate, the government cannot take property for non-public use. This largely applies to when the government takes property from one private party, and gives it to another private party for that party’s own private use. An example of this would be if the city takes a house from a person and gives it to a corporation, so that the corporation can build an office building. This does not benefit the public, nor does it serve a public purpose in any way. It could not be considered “public use” permissible by the Constitution.
A “taking” can refer to any kind of permanent interference of the property. An example of this would be how the government built a military base close to some houses. The courts ruled that the homeowners must be given just compensation, because the government planes flying overhead interfered with the homeowner’s use of the property to the extent that it constituted “taking” of their property. Although the government did not actually seize control of the houses, their operations were so disruptive that the homeowners were deprived of their property’s use.
Do I Need An Attorney If The Government Seized My Property?
Because government taking and seizure can be broad and complex, it is advised that you work with an experienced and local real estate lawyer if you are experiencing government seizure. An attorney can help you understand your rights under your state’s specific eminent domain laws, and will also be able to represent you in court, as needed.