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. Generally, federal and state governments have delegated this eminent domain power to local governments and municipalities.
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 would 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.
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 for the land that they take from you and used for a public purpose.
Pro Tanto Award
Usually, after the government has determined that they will take your land via eminent domain, the government will appraise your property. They will then send you a notice with a pro tanto award. A pro tanto award is an offer on your property based on the appraisal. Most people accept the pro tanto award, but you don't have to. Consult a real estate attorney to determine if you should accept or reject a pro tanto award.
Distinguishing Civil Forfeitures/Condemnation
If the police have reason to believe that you have committed a criminal activity on your property, they may have the right to seize your property. This seizure of property related to a criminal offense is called a civil forfeiture or condemnation.
The government may seize your property if they have reason to believe that the property was:
- Used during the commission of a crime; or
- Purchased with the proceeds from a crime or criminal activity.
When Can the Police Seize My Property Through a Civil Forfeiture?
You need not be convicted of a crime to have your property seized by the police. For example, if a tenant or roommate has used your property in the commission of on-going drug sales or trafficking, your house may be seized. In a civil forfeiture, the government is not required to compensate the owner for taking the property.
The law provides an innocent owner with a defense to the property seizure. To prove that you are an innocent owner, you must show that your property was seized, but you had no knowledge that the property was being used for a criminal activity.
Should I Consult with an Attorney?
In an eminent domain situation, a real estate lawyer can help you negotiate with the government for a proper award for your property. A real estate attorney can help you through the procedural rules and potential consequences of the eminent domain issue. Additionally, if your property has been seized, a real estate attorney can help you determine if the government acted appropriately and whether you are eligible for an innocent owner defense.