Can your real estate be taken from you? Under some circumstances, the short answer is “yes.” Eminent domain power allows the government to take private land for public use. Sometimes called the power of condemnation, or referred to as a "forced sale," this is within the legal toolkit federal, state, local, and even quasi-governmental agencies and public utilities.
While each jurisdiction has its own laws and procedures regarding the taking of private property, many of the broad concepts are the same across the United States.
Legal Basis for Eminent Domain
The concept of eminent domain predates the United States’s founding. Throughout European history, sovereigns have claimed the right to use any land within their borders. The American Constitution, written after the country escaped British monarchic rule, attempted to create some protections for citizens against government overreach.
To prevent the government from snatching privately held property, the Framers included the Fifth Amendment in the Bill of Rights, which provides that “[no] private property [shall] be taken for public use, without just compensation.”
This has been interpreted to mean that the federal, state, or local government entity that wants to take a private person’s land must offer to pay that person the reasonable market rate of the property. Put another way, the government cannot snatch land for free, or pay the owner only a nominal fee.
Different states have placed additional requirements on eminent domain’s use, even beyond this foundational constitutional protection.
The government’s taking must be for a “public use.” Most commonly, this means that the government wants to build a road, school, or other public facility on that particular private parcel of land, or a portion of it. Note that courts define “public use” broadly, to include government uses that would not necessarily be available to the entire public, such as a government office building or army base, or even urban renewal.
It is difficult for property owners to challenge the government’s ability to take a parcel of land, as long as the government can make some rational argument for how the intended use will benefit the public.
The Process of a Government Taking
How does the government actually go about taking private property? Generally, the process will begin with a notice of the government’s interest in taking your property. This will sometimes be served on your personally (by a process server), or sometimes mailed to you, depending on the relevant regulations.
The notice will usually inform you that the government intends to appoint an appraiser to determine the fair market value of your property. The appraiser’s determination will form the basis of the “just compensation” that the Constitution requires be paid to you. The appraisal will typically take into consideration a variety of factors about the property’s condition, location, improvements, natural resources, and broader market conditions. In theory, the valuation should approximate the amount of money you would likely be able to command on the private market if you attempted to sell.
You can accept the government appraiser’s amount, and release your land. Alternatively, you can dispute the government appraiser’s valuation, and hire your own appraiser. While you will still be forced to give up the land, you can at least sue the government and show evidence of why you believe the land’s value is more than whatever number the government offered to pay. Such evidence might include the reports of one or more appraisers, market surveys, or other presentations of value. The judge or jury, as the finder of fact, will determine the proper value.
Types of Takings
Not all government takings involve the total confiscation of your land. There are different forms for taking property. A taking could be complete, where the property and all rights connected to it are taken, or partial, where the government takes only a portion of a parcel of land (for example, land needed to widen a road or lay a cable).
Easements (the right to use your property), such as utility easements, are also a form of taking. Temporary taking is possible, for example, if control of your property is needed during a government construction project.
Note that the fact that the government’s taking is partial or temporary does not relieve it of the obligation to give you “just compensation.” You are still entitled to some form of payment for that use of your property.
Opposing the Government’s Taking
While it is difficult to challenge the government’s ability to take your land, it is common for owners to challenge the amount of money the government is obligated to pay. Knowing your options when faced with an eminent domain case is critical. An eminent domain lawyer is often a necessity in adequately protecting your interests in public hearings.
A lawyer can also advise you on your rights and the law if you pursue other options, such as community action. Sometimes, organized communities or lobbying groups can convince the government to alter a project or lessen the burden on owners. These types of battles are typically fought through the media, putting pressure on elected officials, rather than through the courts. Again, an experienced eminent domain attorney may have some suggestions for exploring all of your options.
Questions for Your Attorney
- Can we convince the government to drop its condemnation proceeding?
- How can I challenge the government appraiser’s valuation of my property?
- Roughly what would the legal fees be to sue the government?
- How long might the litigation last before I see money?