#1 – When the property is taken by the government, this is considered ‘Condemnation’. #2 – When the property is taken for public use, this inherent power is called ‘Eminent Domain’. #3 – If no compensation is agreed between the gove...
What is Eminent Domain?
Eminent Domain refers to a fundamental power of the government to take private property for a public purpose without the owner’s consent in return for reasonable or fair compensation. Although the government may have the right to take private property for public good, it may not do so without providing the landowner with fair compensation which often is defined in terms of fair market value of the property. A landowner’s rights to fair compensation are protected under the United States Constitution. The Fifth Amendment outlines, in pertinent part, that no person shall have their private property taken for public use without “just” or reasonable compensation. Just compensation may be considered the fair market value of the property the government seeks to obtain. The Government’s ability to take private property for public use is commonly referred to as “The Takings Clause”.
Why Should I Hire an Eminent Domain Attorney?
The eminent domain process can be complicated, confusing and often intimidating for a property or business owner. The government tries to portray to the public that they are protecting the interests of the property owner, unfortunately this generally is not the case. The primary focus of the condemning authority is to determine the cheapest way to acquire the desired property. It is critical that property and business owners faced with condemnation contact an experienced attorney at the earliest possible stage in the condemnation process. Consulting with an attorney who has extensive experience in eminent domain is the best way to ensure fair compensation for your losses.
If My Property is Affected by Eminent Domain, What am I Entitled To?
Depending on the specifics of a case, a property owner may be entitled to compensation for any or all of the following:
- Fair market value of real property
- Severance damages (i.e. damages resulting to the remainder after a portion of a larger parcel is condemned)
- Fixtures, equipment and/or improvements pertaining to realty
- Precondemnation damages
When we work with experts to assess and determine the value of a piece of property, there are several key factors that they are going to consider that often times the government did not when making their initial valuation. Those factors include:
- The property’s size
- How the property will be zoned
- Types of buildings and roads that currently exist on the property
- Current property use
- Highest and best use of property
- How accessible the property is
- What other business or land uses are adjacent or in close proximity
- Whether or not there are landholders or leaseholders involved
How Does the Eminent Domain Process Work?
Don’t make the mistake of negotiating with the condemning authority without an attorney. Taking any action on your own is highly discouraged. Simply knowing what eminent domain is and educating yourself on the subject is not a substitute for complex legal knowledge possessed by eminent domain attorneys. Here is a quick summary of how eminent domain action works:
1. Condemning authority is interested in your property
2. Condemning authority hires an appraiser to inspect and appraise your property
3. Condemning authority makes an offer
4. If a final offer is not negotiated with the condemning authority, a public hearing is scheduled where agency has to prove necessity for greatest public good
5. Condemning authority will file a complaint against you in Superior Court
6. Condemning authority must deposit “probable compensation” and file a motion for prejudgment possession. You may object once again. If motion is approved, condemning authority may take possession of your property within 30 days
7. Your attorney will work with a team of experts to establish property’s value. Reports are exchanged with condemning authority
8. In most cases, parties come to an agreement through mediation
9. If no settlement is agreed upon, condemning authority will provide a final offer
10. If there is no financial agreement, a trial is held to determine fair market value of your property