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

Updated on February 24, 2016
MarleneB profile image

Marlene is a California real estate broker/REALTOR®, selling property since 1989. California Bureau of Real Estate License #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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    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hello MartieCoetser. In the country where I live, the only redeeming quality about eminent domain is that the owner is compensated for the land that is being taken. If I am hearing you correctly, it is not so in South Africa. But, you also have a very forgiving heart when you say the "robbers" have some justification for it. How long to people have to pay for their sins? I do hope things get better in South Africa.

    • MartieCoetser profile image

      Martie Coetser 

      2 years ago from South Africa

      The right of the government to claim land on behalf of itself or historical occupants, as well as the threats of far-left parties - that they're going to take land with force and without compensation - are guillotines hanging over the heads of all white land owners in South Africa. Since 1994 many white farmers have lost their farms, some of them flourishing family businesses, and/or commercial farms, which had declined in the hands of their new owners.

      However, we have to keep in mind that we are paying for the 'sins' of our forefathers, or rather of the doings of the governments of our forefathers, who had deprived indigenous people of their land and rights.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hello Faith, it is good to see you here. I am fortunate that I have not had to deal with eminent domain personally, but after watching, "Hell on Wheels" I wondered more about the process and did a little research to understand it a little more. Thank you very much for your feedback.

    • Faith Reaper profile image

      Faith Reaper 

      2 years ago from southern USA

      Hi Marlene,

      I've always wondered about eminent domain, and knew of one case where the family did not want to give up their home, as it was passed down from generation to generation and, so, it was a sad thing.

      I understand it a lot more from reading your informative hub here.

      Blessings

    • Robert Sacchi profile image

      Robert Sacchi 

      2 years ago

      Thank you, yes that answers my question.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Oh, Robert Sacchi, I see what you mean. Well, flexibility only goes as far as what a professional property appraiser considers to be a "fair" value. That's the one thing I think is in the owner's favor. The government will offer the owner a fair value. But, fair value is determined by a third party (the property appraiser). It isn't simply what the owner wants; it's the perceived value as determined by a professional. In the first place, the government will consult with a professional to determine what a fair price would be to offer the owner. If the owner is not satisfied with the price, the owner has an opportunity to challenge the offer through legal channels. If the owner feels the property is worth 10% more, then the owner can ask for their price through the legal channel. But rest assured, an appraiser's opinion will be sought. And, that appraiser's opinion will be the final word on value. So, if the appraiser determines that the price the government offered should be 10% more, then the owner is in good luck. On the other hand, if the appraiser determines that the value of the property is actually 10% less, well then, the owner has just stuck himself/herself in the rear end for challenging the government's original offer.

      The government's intention is to offer a fair market value for the property. Owners can challenge offers, and that's the law in effect to make sure owners have recourse if they feel they are being offered less than they feel is fair.

      I hope I answered your question. If not, please ask again and I will do my best to get your question answered to the best of my ability.

    • Robert Sacchi profile image

      Robert Sacchi 

      2 years ago

      Thank you. I meant how flexible they were with the price. For example if a homeowner asks for 10% more than the government's initial offer would that be a problem for the government.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hello Robert Sacchi. Thank you for stopping by. Eminent domain is serious business. The government doesn't enter into such a situation lightly. But, the government does have the power to take your property if it is in the way of governmental progress. The only flexibility is in how much the owner will be paid when such time comes that the government needs to take ownership of your property.

    • Robert Sacchi profile image

      Robert Sacchi 

      2 years ago

      Good article with good information. Is there any general rule on how flexible the governments tend to be with negotiations?

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Thank you Rajan. I agree with you. I realize I may not have control over whether or not my property could be taken by eminent domain, but I am comforted in the knowledge that there is a way to make sure I am at least compensated fairly.

    • rajan jolly profile image

      Rajan Singh Jolly 

      2 years ago from From Mumbai, presently in Jalandhar,INDIA.

      I like the fact that the law says that the compensation should also be just to the people who pay for it. Glad the taxpayer's money is justly spent by being fair in the compensation to everyone irrespective of the power/position the land owner holds.

      Thanks for all the information on Eminent Domain, This certainly added to my knowledge.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Thank you for sharing about your friend, MsDora. It is good to hear about things like eminent domain turning out well for citizens. I'm really glad about that because a lot of times it doesn't turn out so well.

    • MsDora profile image

      Dora Weithers 

      2 years ago from The Caribbean

      Marlene, I know one friend who benefited well (at least, she thinks so) from this "Eminent Domain" compensation. Your article explains the process very well. Thank you.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hi DDE, thank you very much. Watching the show, "Hell on Wheels" was my motivation to write this hub.

    • DDE profile image

      Devika Primić 

      2 years ago from Dubrovnik, Croatia

      Hi Marlene you are educated in this field and found your hub to be informative and useful. thank you.

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hello Bill! I might watch too much TV and listen to too much news, but in almost every eminent domain case I hear about, it seems like they could have just taken another route to achieve their objective. I'd be that little old lady shouting, "I was here first, go around!" Hahahaha!

    • MarleneB profile imageAUTHOR

      Marlene Bertrand 

      2 years ago from USA

      Hello Eric. I worked with a lot of first-time buyers and writing these hubs is sometimes recollections of explanations.

      It seems like there must be a better way than just taking someone's property, though. Sometimes, I wonder why the government can't just go around the property. They have to pay to get the property; they should just pay to go around the property. But, what do I know? I'm just a little ol' citizen.

    • billybuc profile image

      Bill Holland 

      2 years ago from Olympia, WA

      I understand the need for eminent domain....but I doubt I would be so understanding if they decided to put a road through my living room. :) Great explanation, my friend.

    • Ericdierker profile image

      Eric Dierker 

      2 years ago from Spring Valley, CA. U.S.A.

      Very well done Marlene. You sure know your stuff about property. Taking of property always sounds just plain sad to me.

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