In the United States, citizens enjoy the right to life, liberty, and property, however, there are limits to these rights. With respect to property rights, in particular, the government can take private land for public use under its power of an eminent domain. The best way to protect your property rights is to consult an experienced real estate/eminent domain attorney.
What is eminent domain?
The federal government’s power of eminent domain is derived from the “takings clause” of the Fifth Amendment to the U.S. Constitution, which basically states that private property shall not be taken for public use without just compensation. The Fourteenth Amendment extends the power of eminent domain to municipal and state governments as well.
The government’s acquisition of private land is referred to as a “taking,” of which there are three categories:
- Complete taking — The entire property is purchased
- Partial taking — Only a portion of the property is acquired
- Temporary taking — The property is only to be used for a specific time period
The power of eminent domain does not give the government authority to take any land, however. A taking is only permitted if it is for “public use” and the property owner receives just compensation. Additionally, eminent domain is not limited to the government’s acquisition of real property. A taking also includes any government action that impacts the land, alters the property’s use, or results in a decrease of its value, such as zoning or development. Finally, contract rights and intellectual property (e.g. copyrights, patents) are also subject to eminent domain.
How does eminent domain work?
If the government is planning to acquire private property to undertake a public works project, it will commence condemnation proceedings. While the process varies from state to state, the government will first make an offer to buy the property from the owner. If the owner accepts the offer, court intervention will not be necessary — the government simply pays the owner in exchange for the deed to the land.
The owner has the right to challenge the legality of the seizure, however, as well as to contest the issue of the land’s fair market value. In this situation, the government will file a court action to hold a public hearing at which the government must be able to prove that it attempted to negotiate a deal and that the taking is for “public use.”
What is public use?
In short, public use means that the property to be taken must provide the public with a benefit or advantage. In the past, justifiable public use was related to projects such as highways, railroads, bridges, government buildings, and the expansion of public parks.
The Supreme Court broadened the definition of public use in 2005 by holding that public use included any structure intended to benefit the community. This includes shopping malls, hotels, condominiums, and health clubs. A number of states have since enacted laws to protect private property owners from abusive eminent domain takings, however.
In sum, if the government is considering taking your property through an eminent domain proceeding, you have the option of either accepting the government’s offer for your land or challenging the taking.