Eminent domain can be a home or property owner’s worst nightmare. In worst case scenarios homes which have been in families for generations are taken away by the state with only token compensation. If you have received a notice of intent to take your property you need to act quickly. A local real estate attorney can help you fight the taking of your property and, if it cannot be stopped, make sure that you receive full and just compensation.
What is Eminent Domain?
Eminent domain is the government’s ability to take your property away from you for “public use”. The definition of public use is very controversial. In the case of Kelo v. City of New London, in 2005, The U.S. Supreme Court ruled that transferring property from one private owner to another for the purpose of economic development could be considered “public use”.
In response to the Kelo decision, most states have enacted laws to protect property owners from the taking of their land for economic development. Each state is different and some states favor property owners more than others.
Who Can Take Your Property
Government entities and quasi-government entities have the power to take land under eminent domain. This includes federal, state, and local governments, as well as utility companies, school districts, airports, and similar entities.
While private companies and corporations are not allowed to directly take property under eminent domain, as mentioned above in the Kelo case, a government entity may be allowed to take your property with the intention of giving it to a company that will use it for private gain under the auspices of contributing to the public good.
If the government takes your property it is required to pay you “just compensation”. When you receive a notice of intent to take your property under eminent domain, it may include an offer for compensation. You do not have to accept that offer. If you refuse the offer your case goes to condemnation proceedings.
Determining the value of your property can be very complicated. Depending on the nature of the property, it may be based on fair market value, replacement value, or income potential. Additionally, you may only be losing a portion of a piece of property which can complicate the issue even further.
You can try to fight the taking of your property by contesting the proposed use of your property or the amount of property being taken. It is very difficult to succeed based on proposed use. You have a better chance proving that the government is taking more than the necessary amount of land to serve its purpose.