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Eminent Domain Lawyers

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Why Does the Government Have the Power of Eminent Domain?

Local, state, and federal government agencies have the power of eminent domain condemnation for the purpose of strengthening the public infrastructure. In other words, they have the power to take and use private property for public use. Such purposes can include the creation of highways, schools, public utilities, and/or to ensure public safety. However, some argue that eminent domain has become a tool used by government agencies to transfer private property from one owner to another.

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
  • That the compensation offered is not sufficient.

The first argument 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.

What If The Compensation Offered Isn’t Enough? 

The compensation offered by the government for taking private property only needs to be “just”. The Supreme Court has ruled that “just” only means “the market value of the property at the time of the compulsory taking”. However, it may still be wise to contest the amount offered, as government agencies will rarely offer the fair value of the property on the first attempt. Bartering with the agency can increase the amount offered. Be advised though, that if the case goes to court, there is a chance that the jury may decrease the compensation.

Does the Government Exercise Eminent Domain When My Property Is Damaged or Confiscated By the Police?

Strictly speaking, police damage or confiscation of property in the course of an investigation or pursuit of a criminal falls under the government’s police powers, not its power of eminent domain. Nevertheless, most states have policies requiring the compensation of third parties whose property was damaged, destroyed or taken due to police action.

The Government Took My House and Allowed A Private Company To Build A Shopping Mall Over It! Is That Legal?

In 2005, the Federal Supreme Court ruled 5 to 4 that it was “public use” for governments could take property from one private owner and give the property to another property owner. However, the decision provided to be immensely unpopular and many states have passed laws or constitutional amendments restricting the use of eminent domain. On the Federal level, President Bush issued an executive order in 2006 restricting the federal government’s eminent domain powers to public use only. The order still remains as of this update in 2012.

What Alternatives Exist to Eminent Domain?

Throughout the United States, local governments, developers, and landowners have found alternatives to Eminent Domain. These alternatives include:

  • Negotiated Purchases: The private parties may meet and contract a sale of the property in question without the intervention of any government agencies. Hiring an experienced eminent domain lawyer is highly recommended for this kind of transaction.
  • Leases: The private parties may meet and agree to a lease where the existing landowner rents the property to the other party without the intervention of any government agencies.
  • Joint Ventures: A joint venture provides the landowner the opportunity to make a greater profit by participating as a co-developer. This can be completed without the intervention of any government agencies.
  • Land Swaps: The developer can purchase another property which the landowner expresses interest in and then swap the properties. This can be completed without the intervention of any government agencies.

Hiring an experienced eminent domain lawyer is highly recommended for any of these kinds of transaction.

Do I Need a Lawyer?

If you are facing the prospect of your land being taken by eminent domain, experienced eminent domain lawyers can advise you of the applicable laws in your area. It is likely that an alternative to eminent domain exists. Your lawyer can help you pursue those alternatives so you are justly compensated.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 12-08-2015 02:45 PM PST

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