On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP on Wednesday, December 12, 2018.

While American citizens have the right to life, liberty, and property sans unreasonable government interference, under certain conditions the government can take property with or without permission. The term “eminent domain” refers to its power to take private land for public use under the Fifth Amendment of the U.S. Constitution.

More specifically, the “Takings Clause” prohibits the federal government from taking private property for public use “without just compensation.” It is also applied to state and local governments via the 14th Amendment. This clause doesn’t give the government free reign to take over any land it so chooses; rather, it acts as a limit on the power of the government through the requirement that a taking can only happen if the land is deemed to be for “public use” and in exchange for proper compensation.

When the government acquires private land, this is called “taking.” This differs from “property seizure” which happens when a property owner either commits a particular kind of crime or abandons the property. There are various categories when it comes to takings:

  • complete taking: The whole property is purchased.
  • partial taking: Only a part of the property is needed.
  • temporary taking: The property is needed only for a specific period of time.

“Taking” includes more than just the government’s acquiring of property; it also includes government action that affects the land, such as zoning or developmental plans that change how the property can be used or lead to a decrease in property value.

How Eminent Domain Works

If the government plans an expansion or public works project and feels it must acquire private property in order to complete the project, it will start the legal process of condemnation. First, the government will attempt to negotiate a deal to buy the land from you as the owner. If you agree to the price, there’s no reason to head to court. In this case, the government will pay you for the deed and you can then go your separate ways.
It’s not always this smooth. If you as the owner disagree with the offered price, both parties head to court to contest the issue of the land’s fair market value. If you still refuse to sell the property, the government can file a court action and post a public notice as to the date of the hearing. This hearing is where the government must prove its attempts at negotiating a sale and prove that the taking is for “public use.”
The landowner then has the opportunity to object and offer evidence to defend him or herself. Often times, both sides bring in their own expert testimony to contest the issue of valuation.

Defining “Public Use”

In order to win an eminent domain or condemnation action, the government must show that the project is intended for “public use” – meaning that the property must offer benefit or advantage to the public. Some examples may include:

  • Transportation projects: roads, railroads, bridges
  • Government buildings: post offices
  • Water supply structures: aquifers and reservoirs
  • Expansion of public and national parks
  • Preparation for war efforts and production of related materials

Your Rights

As a property owner, you have the right to challenge the government’s claims, you have the right to appear in court and you have the right to hire representation. Here at Sayer Regan & Thayer, we have the experience and skill to represent you in your eminent domain case against the government.

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.