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Eminent Domain - What to Do if the Government Wants to Take Your Property From You

Updated on February 24, 2016
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Marlene is a California real estate broker who has been selling property since 1989. California Real Estate License number 01056418.

Pacific Union Railways built using eminent domain.
Pacific Union Railways built using eminent domain. | Source

Can you imagine living in your home for decades, raising a family, expecting to retire and live peacefully for the remainder of your life and then all of a sudden, the government decides to create a project that involves your land? Can you imagine that after all of these years, you could be forced to give up your land to the government?

Just Compensation

Just compensation is the fair market value of the property at the time the property is being taken.

Eminent Domain

Through a process called “eminent domain” the government has legal power to acquire privately owned land for public use. It does not matter how long you have owned your property; the government has the right to acquire any property it sees necessary to facilitate certain government goals for uses.

But, the government can’t just come in and take your property without compensation. They must offer just compensation.

Safeguards for Landowners and Taxpayers

The Fifth Amendment to the United States Constitution, as interpreted by the Supreme Court, safeguards landowners and taxpayers.

The right of eminent domain …cannot be exercised except upon condition that just compensation shall be made to the owner; … it is the duty of the state … to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.

— Searl v. School Dist., 133 U. S. 553, 562 (1890)
Lady Justice
Lady Justice | Source

What Can You Do to Fight Eminent Domain?

When the government has cause and needs your land for development of a government project, there is nothing you can do to stop the process. The government does not need your permission to take your property.

There is a legal process that allows you to challenge the compensation that you receive, and even after challenging the compensation, at the end of the process, the government is only going to pay you what they feel is justified.

To challenge the compensation, you will need to go to court. A hearing will be scheduled for the government to present evidence that they need your property and how much they want to pay. You will be able to voice your opinion at the hearing.

The Eminent Domain Process

Before beginning the process to contest eminent domain, let us look at how the eminent domain process is structured. The legal procedures vary by states and regions, but basically, the process follows as such:

  • The government will come to you (the property owner) and try to negotiate a price for your property.
  • If you do not want to sell, then the government files a court action to move forward with eminent domain. A hearing is scheduled and you are served to appear in court.

  • During the hearing
    • the government must show that they negotiated in good faith
    • the government must show that they absolutely need your property
    • you have an opportunity to respond to the government’s claim
  • After the hearing
    • If the government is successful, proceedings are held to establish the fair market value of your property.
      • Payments go first to you to pay off mortgages, liens, and encumbrances on your property. Any leftover funds go to you. The government receives title to the property.
    • If the government is not successful, or if you are not happy with the outcome, then either the government or you may appeal the decision.
      • Both the government and you may utilize appraisers to help establish a fair market value for the property.

Hell on Wheels

Every now and then, I turn on Netflix and binge-watch a show, one episode after another. I started watching “Hell on Wheels,” a show about how the Pacific Union railroad was built. Eminent domain was prevalent in the late 1800's, during which time the railroad was being built. While being established, because of the turmoil and challenges, the Union Pacific railroad was lovingly called, “Hell on Wheels.”

Why Eminent Domain?

When the civil war ended in 1865, slaves were freed and people began to look for work outside the farm. The United States became more industrial, developing manufacturing and processing plants. The American population began to grow rapidly and in order to facilitate this growth, the country needed to build more roads, railways, and waterways to move people and products across land and water. In order to build transportation and build up cities, the government needed to acquire land that was already owned by private citizens. Thus became the concept and the law of eminent domain.

What is Eminent Domain Used For?

Eminent domain is a process of land acquisition where the government can come in and take a home owner’s property, condemn the property, and build public structures upon the land.

Eminent Domain is Used to:

  • Facilitate water supply – pumps, pipes, aqueducts, levees, and dikes
  • House government services – post offices, court houses, and other public uses

Union Pacific Steam Locomotive
Union Pacific Steam Locomotive | Source
  • Facilitate transportation infrastructure– railroads, highways, depots, airports, and piers
  • National defense – forts, armories, and arsenals
  • National security installations – navy yards and light-houses
  • Providing recreational opportunities – parks, open space, and places of historic interest
  • Environment management areas – protecting environmentally sensitive areas (for example, preserving brown bear habitats)

Somehow, when they call it land acquisition and condemnation it seems like such a natural and forthright process.

Eminent domain is legal in the United States.
Eminent domain is legal in the United States. | Source

Eminent Domain – It’s Legal!

It is important to note that while the government has the power to take your property, the government must also show an absolute need for taking your property. They must offer you (the property owner) a fair market value for your property.

You do have an opportunity to go to court and state your position at an eminent domain hearing, however, laws are not changed during eminent domain hearings. You can challenge eminent domain, but because there is already a law in place that allows eminent domain, it is highly unlikely for you (a private citizen) to win a case against the government.

You can challenge the amount of compensation that you receive, and there is a possibility that through hired appraisers a fair market value is established, which may or may not be a price you agree with, nevertheless, it is the price the government will pay. Take it or leave it!

Through the laws awarded by eminent domain, if the government wants your property, they will take it.

Hopefully, you will not have to face the effects of eminent domain, but if you are in a position where the government wants to take your property, just know that, aside from contesting the compensation, there is not much you can do about it.

Resources

The United States Department of Justice, History of the Federal Use of Eminent Domain, http://www.justice.gov/enrd/history-federal-use-eminent-domain

U. S. Department of Housing and Urban Development(HUD), Eminent Domain, http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/centers/sac/eminent

ExpertLaw, The Process of Eminent Domain, http://www.expertlaw.com/library/real_estate/eminent_domain.html#2

"Real estate made easy!"

Although retired from actively selling real estate, Marlene Bertrand maintains a current Broker/REALTOR® status. Calif. Bureau of Real Estate Lic. #01056418

© 2016 Marlene Bertrand

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