The steps a government agency must take to obtain your property through a case of eminent domain is usually determined through statutes in your state.
When a government agency is interested in obtaining your property through eminent domain, they will:
- Make an initial contact to express an interest in your property
- Schedule a date for an appraisal of your property
Once the appraisal is complete, you will be provided with a copy of the appraisal and an offer will be made to purchase your property.
After an offer is made, a public hearing is held for the agency to explain why your property must be taken. Usually, the agency will have to show that:
- Your property is necessary for a public project
- The greatest benefit to the public will be where your property is located
- They have made an offer to you
You are also free to challenge the taking at this hearing.
After showing that your property is necessary for a public project, an eminent domain case will be filed in court. Through a court proceeding, you can be sure to obtain the best possible price for your property:
- The government agency that wants to take your property will make a deposit with the court for the expected value of your property
- Before the case is heard in court, you and the government will obtain appraisers to determine the fair market value of your property
- The appraisals will be exchanged and you have the opportunity to settle
- If you choose not to settle, a jury will be used to determine the fair market value
Once a settlement is reached, or a jury comes to a decision, the government agency will have to pay you within 30 days. At this time, title to your property will be transferred to the government.
The government is only suppose to take property if the property is used to serve the needs of the public. The most common example is highways or roads. Schools may also be considered.
In recent decades, however, there has been a shift in the meaning of “public use.” In 2005, the federal Supreme Court expanded the definition of “public use” to include private companies, such as oil companies, gas companies, and retail giants. This shift has not been without controversial.
In 2006, President Bush signed an executive order to prevent the federal government from abusing eminent domain by taking from one private party to give to another private party.
Congress has not successfully passed a law reversing the Supreme Court’s decision. Several bills have been introduced, but most of them failed to even reach a vote since the bills often lacked the necessary tools to enforced the bill.
The following states have state courts that have prohibited or limited the use of eminent domain for private gain:
- New Hampshire
- South Carolina
The following states have amended their state constitutions to forbid or limit the use of eminent domain for private gain:
- South Carolina
The following states have state laws which forbid or limit the use of eminent domain for private gain:
- New Mexico
- North Dakota
- South Dakota
If you are contacted by a government agency that wants to take your property, an experienced real estate attorney can help ensure your rights are protected. A lawyer can help you obtain an accurate appraisal and represent you in reaching a settlement or guiding your case through a trial.