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Eminent Domain and Severance Damages

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What Is Eminent Domain?

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.

If multiple people, such as with joint tenancy or tenancy in common, own the property, then the government will compensate each owner for the percentage that they own.

What Is a Public Purpose for Eminent Domain Matters?

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.

How Am I Compensated When a Portion of My Property is Taken?

When a portion of your property is taken by eminent domain, you are entitled to:

  • Just compensation for the value of the property taken
  • Any damage to your remaining property

Just Compensation in Eminent Domain Matters

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.

How Is Fair Market Value for the Property Determined?

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 history of economic development in the area
  • The proximity of the taken property to other properties with similar uses
  • The existence of specific plans for use of the land

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.

What Are Severance Damages?

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:

  • Loss or reduction of access to your remaining land
  • Construction, maintenance, and use of the land taken, which reduces value of your remaining land
  • Aesthetic value of your remaining land is reduced because of the taking

Am I Entitled to Severance Damages?

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.

Can I Stop the Government From Seizing My Property?

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 property in question will not be used to enhance the public good
  • The compensation offered is not sufficient

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.

Do I Need a Lawyer for My Eminent Domain Problem?

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.

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 12-08-2015 02:44 PM PST

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