Eminent Domain Law

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 When Can the Government Seize a Person’s Property?

Federal, state, and local government agencies all have the right of eminent domain for the purpose of strengthening the public infrastructure present in their respective jurisdictions. This means that under specific circumstances, federal, state, or local governments have the power to take private property and put it to public use. Common public purposes may be such purposes as the creation of highways, public schools, public utilities, and/or to ensure public safety.

Of course, under eminent domain law, the government entity that seizes a person’s private property must compensate the person for the property they lose.

Examples of some of the situations in which governments often use their power of eminent domain to seize private property include the following:

  • Condemned Property: A condemned property is a property that a government agency has closed or seized because it is unfit for human habitation or otherwise a threat to public health and safety. Typically, condemned properties are extremely dilapidated or damaged properties that have not been properly cared for by their private owners.
    • Usually, it is local government agencies, e.g., agencies of municipal government that apply local condemned property laws in the condemnation process.
    • Other examples of the common characteristics of condemnation real estate include the following:
      • Properties or buildings that are hazards, such as buildings that are likely to collapse;
      • Properties that are an unattractive nuisance;
      • Properties that pose fire or health hazards;
      • Properties that are known to be hubs for illegal activity, such as drug activity; or
      • Properties that are in violation of a local code or ordinance;
  • Judicial Liens: Governments are allowed to take the title of land or property pursuant to a judicial lien. Judicial liens are liens that are obtained through judicial processes. They are common in cases involving foreclosure that result in judicial sale of property. A government agency might use a judicial lien in cases in which the owner of property owes the government money;
  • Tax Seizure: In some cases, governments are allowed to take title to land as a result of an individual’s failure to pay taxes;
  • Seizure for Private Economic Development: A Government may also seize property for the purpose of assisting in certain private development projects that a public entity thinks would contribute to the rehabilitation of a community. But more often, eminent domain is used to take property for uses such as the expansion of road and bridge projects to meet the demand of the growing population; and
  • Civil Forfeiture: A government may seize property if the property is associated with the commission of a crime. Civil forfeiture is designed to combat organized crime and large-scale drug trafficking by allowing the government to take the property of criminals.
    • It is important to note that none of the rights associated with just compensation, due process, or punishments are triggered by civil forfeiture proceedings.

With the exception of civil forfeiture, whenever the government initiates a taking to seize property, the government must provide what is known as “just compensation” to the property owner. In takings that involve liens and tax seizures, the property is sold through an auction.

What Is Eminent Domain?

Once again, local, state, and federal government agencies have the power of eminent domain and apply eminent domain rules only for the purpose of “strengthening the public infrastructure.” This means that they have the power to take and use private property for public use and public purposes, such as the construction of highways, public utilities, or ensuring public safety.

Both the pros and cons of eminent domain have been recognized. Although eminent domain has been used for the purposes of strengthening the public infrastructure, e.g., the roads and highways that Americans love to populate. However, many people argue that eminent domain has also been used by governments as a tool to transfer private property from one owner to another.

Additionally, there is a history of the American government using eminent domain to displace communities of color, such as:

  • The community of Seneca Falls being wiped out to create Central Park;
  • The construction of Lake Lanier in Georgia, during which more than 50,000 acres of farmland were destroyed and 250 families displaced. In addition, 15 businesses were lost, and 20 cemeteries had to be relocated;
  • Chavez’s Ravine in Los Angeles was turned from serving as the site of a public housing project to the location of Dodgers Stadium.

Under the United States Constitution, a governmental body is only permitted to take and use property for a public purpose, if they give the property owner just compensation. Just compensation means that the government must pay the owner of the private land that they take from the owner. In general, federal and state governments have delegated this eminent domain power to local governments and municipalities.

Thus, in order to take private property under the powers of eminent domain, a governmental body must prove that the property is to be used for a public purpose. Generally speaking, the government is given wide discretion to say what constitutes a public purpose. Additionally, courts are generally unwilling to question the purpose that the government has put forward as the reason for the taking of the land.

What Is a Pro Tanto Award?

After the U.S. government has determined that they wish to take a person’s land via eminent domain, they appraise the property and send the owner a notice with a pro tanto award. A pro tanto award is an offer to buy the property in exchange for an amount of money that is based on the appraisal.

While most people accept the pro tanto award, a person should keep in mind that they do not have to accept their offer. Consulting with a real estate attorney or eminent domain attorney can help determine whether a person should accept or reject a pro tanto award.

When Can the Police Seize My Property Through Eminent Domain?

If the police have reason to believe that a person has engaged in criminal activity on their property, they have the right to seize the person’s property in what is called “civil forfeiture” or “condemnation.”

The government may seize a person’s property if they have reason to believe that the property was used in the commission of a crime or was purchased with the proceeds from a crime or criminal activity. A person does not even have to be convicted of a crime to have their property seized by the police. An example of this would be seizure of an apartment building if a tenant or roommate has used the property in the commission of ongoing drug sales or trafficking.

Additionally, the government is not required to compensate the owner for taking their property in civil forfeiture.

The law provides an innocent owner with a defense to the property seizure. In order to prove that a person is an innocent owner, they must show that their property was seized but that they had no knowledge that the property was being used for criminal activity.

What Are the Steps of Eminent Domain?

The steps a government agency must take to obtain your property through a case of eminent domain are generally determined through statutes in your state. When a government agency is interested in obtaining a person’s property through eminent domain, they need to make an initial contact to express an interest in the property.

The government agency then needs to schedule a date for an appraisal of the property. As was previously mentioned, once the appraisal is complete, the owner is provided a copy of the appraisal, and an offer is made to purchase the property.

After an offer is made, a public hearing is held by the government agency to explain why a person’s property must be taken. The agency generally needs to prove that:

  • The property is needed as a site for a public project;
  • The greatest benefit to the public will be where the person’s property is located;
  • The government agency has made an offer of just compensation to the owner.

A person is also free to challenge the taking at this hearing.

After the hearing, an eminent domain case is filed in court. The government agency that wants to take the property makes a deposit with the court for the expected value of the property. Before the case is heard in court, the owner and the government obtain appraisers to determine the fair market value of the property. The appraisals are exchanged, and the owner has an opportunity to settle.

If the owner chooses not to settle, there is a jury trial to determine the fair market value of the property.

Once a settlement is reached or a jury comes to a decision, the government agency must pay the owner within 30 days. At this time, the title to the property is transferred to the government. While the government should only exercise eminent domain for public use, there has been a highly controversial shift in the meaning of “public use.”

In 2005, the U.S. Supreme Court expanded the definition of “public use” to include uses by private enterprises, such as:

  • A pharmaceutical company;
  • Oil companies;
  • Gas companies;
  • Retail giants.

What Federal and State Protections Do I Have Against Eminent Domain?

In 2006, a federal executive order was put in place to prevent the federal government from abusing eminent domain by taking from one private party to give to another private party.

The following state courts have prohibited or limited the use of the right of eminent domain for private gain:

  • Arkansas;
  • Kentucky;
  • Maine;
  • New Hampshire;
  • Ohio;
  • South Carolina;
  • Washington.

The following states have amended their state constitutions to forbid or limit the use of eminent domain for private gain:

  • Florida;
  • Georgia;
  • Louisiana;
  • Michigan;
  • Mississippi;
  • Nevada;
  • Oregon;
  • South Carolina;
  • Texas.

The following states have state laws which forbid or limit the use of eminent domain for private gain:

  • Alaska;
  • Delaware;
  • Indiana;
  • Iowa;
  • Kansas;
  • Minnesota;
  • New Mexico;
  • North Dakota;
  • Pennsylvania;
  • South Dakota;
  • Utah;
  • Virginia;
  • Wisconsin;
  • Wyoming.

How Can the Government Be Stopped From Seizing Property?

The Fifth Amendment of the United States Constitution states that the government can only take private property for public use and only if the government pays the private property owners just compensation. As such, citizens can resist an action commenced by the government’s power of eminent domain by demonstrating:

  • That the condemned property in question will not be used to enhance the public good or for a public purpose;
  • That the just compensation offered as payment for the property is insufficient.

A property owner whose land has been condemned may dispute the public use requirement by demanding that the governmental agency seeking to take the property produce a resolution of necessity. A resolution of necessity is a document that explains why the property is needed for the completion of a public project, i.e., what the public purpose is for seizing the property. The explanation provided in the resolution can then be disputed in court.

What if the Compensation Offered Is Insufficient?

As noted above, the compensation provided for the property seized by the government must be just compensation. However, the Supreme Court of the United States has consistently ruled that “just” only means “the market value of the property at the time of the compulsory taking.”

An individual may still wish to contest the amount offered for the taking of their property, as government agencies will rarely even offer the fair market value of the property on their first taking attempt. As such, negotiating with the governmental body can often increase the amount offered for the taking.

It is important to note that if the eminent domain case goes to court, there is a chance that the judge or jury may decrease the latest amount of compensation offered by the governmental body. However, the opposite is also true. A jury or judge may determine that a higher compensation is required to fulfill the just compensation requirement of a taking.

What Alternatives Are There to Eminent Domain?

Throughout the United States, local governments, developers, and landowners have found numerous alternatives to eminent domain. Examples of common alternatives to an eminent domain action include:

  • Negotiated Purchases: Instead of initiating an eminent domain action, the government or developer and property owner may simply meet and negotiate a sale of the property in question. For these types of negotiations, it is strongly advised to consult with an experienced eminent domain lawyer who is familiar with the market trends and laws in the area;
  • Leases: In lieu of purchasing or taking the property, the private parties may meet and agree to a lease where the existing property owner rents the property to the other party;
  • Joint Ventures: A joint venture provides the property owner the opportunity to make a greater profit for the use of their land by participating as a co-developer in the project;
  • Land Swaps: In some cases, a developer can purchase another piece of property in which the landowner expresses an interest and then swap the two properties. Trading a piece of land or property for another of similar value is another way of preventing an eminent domain action.

Do I Need A Lawyer For Help With Eminent Domain Law?

If you are facing an eminent domain action initiated by a governmental body, it is in your best interest to consult with an experienced real estate lawyer. LegalMatch.com can connect you to an experienced eminent domain lawyer in your area who can help you negotiate with the government for a proper price for your property. Additionally, they can guide you through the process of an eminent domain case.

Your lawyer can represent you in challenging the government’s taking of your property if you believe it is improper. If your property has already been seized, an eminent domain lawyer can help you determine whether the government acted appropriately and whether you are eligible for an innocent owner’s defense.

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