Eminent Domain
Eminent domain, also known as compulsory purchase expropriation, is the power of the state to seize a citizen’s land for public use. Monetary compensation is required in this situation, but the owner’s consent is not. In some jurisdictions, the government must offer to purchase the property at the owner’s price before resorting to eminent domain.
The property taken by eminent domain may be used for a variety of purposes, including public or civic use, or economic development in some cases. Most often, it is used for railroads, roads, and public utilities. In some cases, the government may take ownership of only a portion of the property, or an interest in it, such as an easement.
Condemnation is often confused with eminent domain. This term describes the declaration that a building has become unfit for human habitation due to its condition. When such a building is condemned, title remains in the hands of the owner, unlike the case with eminent domain. In eminent domain situations, the land may be taken regardless of the condition of the buildings. In exchange for monetary compensation, the title changes hand, meaning that the former owner now has no claim to the property.
During an eminent domain situation, usually the most contested part is how much money equates “just compensation.” An appraisal or survey of the land, coupled with an accurate land survey, can help establish a fair price. In most cases, homeowners or landowners feel that the government holds all of the power when taking land by eminent domain. Having an accurate idea of the amount of money you should be compensated can help you get a fair deal. Some jurisdictions even include a payment specifically for such valuation to ensure that you are not underpaid for the property.
In addition, the property owner may challenge the right to eminent domain on the grounds that the land will not be used for a public use or that proper procedure was not followed. In the United States, each state is allowed to make its own determination of what constitutes ‘public use.’ Most challenges on this basis involve the taking of land through eminent domain for redevelopment, especially if this development will create profits for other private citizens. Unfortunately, this is an area left open for interpretation, which can often cause bad feelings from those whose land is being taken for such developments.
Although eminent domain is usually used to apply to real estate, governments may also take supplies, especially during wartime, as well as intangible property such as patents and copyrights. Generally, the same principles govern these rights as those governing eminent domain regarding real estate.
The practice of eminent domain has long existed in Europe; the Magna Carta required the exchange of cash payment when exercising eminent domain rights. This idea was also used in America; in the early years, eminent domain existed without compensation because land was abundant. The fifth amendment of the U.S. Constitution governs eminent domain by mandating compensation for land taken in this manner.
Charles Lee Iner, RLS
April 2009