Under the United States Constitution, the government is permitted to take and use property for a public purpose if they give the landowner just compensation. This is known as eminent domain. For example, government agencies will take a portion of a landowner's property for street widening or highway construction projects. Generally, federal and state governments have delegated this eminent domain power to local governments and municipalities.
In order to take private property under the powers of eminent domain, the government must show that it will be used for a public purpose. Generally, the government is given a lot of leeway on what constitutes a public purpose. Likewise, courts are usually unwilling to question the purpose that the government has put forward as the reason for taking your land. For example, the government will seize someone’s property to use it for a government building. In this case, this would be considered a government taking and the government must provide the owner with compensation.
When a portion of your property is taken by eminent domain, you are entitled to:
Under the constitution, the government cannot take your land, or a part of it, without just compensation. "Just compensation" means that the government must pay you “the market value of the property at the time of the compulsory taking” for the land that they take from you and used for a public purpose. Usually after the government has seized a person’s property, they will appraise the property taken and send a notice of the amount of compensation the owner will receive.
When the government compensates someone for the property taken, they will give the fair market value at the time of taking. Fair market value is determined through appraisals. The court will compare the property to be taken to comparable properties that were previously sold in the area. Other factors used by the court to make their decision include:
The court will also consider the location, frontage, depth, improvements, and price previously paid for similar parcels. Additionally, there are various federal, state, and local statutes that help determine what the fair market value of the taken property should be.
The compensation you receive for damage caused by the severing of your property are "severance damages". Generally, severance damages are the amount of damage to the remainder of your land when a portion is taken. Examples of damages include:
You are entitled to severance damages if the value of your remaining land is decreased because of the taking of land. However, if the value of your remaining land stays the same because of the taking, or is increased, then you may not receive severance damages. You cannot speculate and factor in future value when computing severance damages.
The Constitution’s Fifth Amendment declares that the government can only take private property for public use and only if the government pays the private property owners just compensation. Citizens can resist the government’s power of eminent domain by showing one of two arguments:
The arguments that can be made by demanding that the governmental agency seeking to take the property produce a resolution of necessity. The resolution is a document explaining why the property is needed for the completion of a public project. The explanation provided in the resolution can be tested in court.
When a portion of your land is taken by eminent domain, you may be entitled to just compensation for your land and severance damages. A real estate attorney can review the taking of your land and advise you of your rights and remedies. A lawyer also can represent you in court.
Last Modified: 12-08-2015 02:44 PM PSTLaw Library Disclaimer
We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.