Can your real estate be taken from you? Sometimes the answer is "yes." Eminent domain (or condemnation) is the power of government to take private property for a public use.
State laws regulate how government can take an owner's land. In many states, the government must negotiate with an owner before taking the property. In other states, legal proceedings can begin without prior notice to the owner.
The Property Condemnation Process
When the government condemns your property and takes it for public use:
- You receive a notice stating the government's interest in your property and identifying the planned project
- Your property is appraised to determine fair market value. You have the constitutional right to "just compensation" when the government takes your property
- The government makes an offer for a specific amount ("pro tanto award") for your property
- If you accept the offer, the government will ask you to sign legal releases waiving your right to sue the government
- If you don't accept the government's offer, the government will take the matter to court in an eminent domain proceeding to decide whether your property can be taken and how much you will be paid
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).
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.
It's critical to know your options and protect your property rights when faced with an eminent domain case. An eminent domain lawyer is often a necessity in adequately protecting your interests in public hearings and governmental procedures.
Courts generally interpret the meaning of "public use" broadly, and arguments that the government lacks a valid reason to take your property often fail. Major issues in eminent domain cases center on deciding property value and compensation, including costs for moving and relocation.
A lawyer can also advise you on your rights and the law if you pursue other options, such as community action. Sometimes organized groups of property owners can convince the government to alter a project to lessen the burden on owners.
Questions for Your Attorney
- Can the government drop a condemnation case? What if I've incurred costs and the taking is never completed?
- Are property owners entitled to attorney's fees in eminent domain cases?
- How is property value assessed? Are issues of future development and increased value considered?
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