EMINENT DOMAIN – IS YOUR PROPERTY AT RISK?
The term eminent domain refers to the process in which the government seizes private property for public use, after providing fair compensation. The thought of the government seizing your property can be scary. So, is your property at risk from eminent domain? We are going to talk a bit today about how the process works, and your available options if you have property being threatened by eminent domain.
WHAT CAN BE TAKEN?
The one we hear about most commonly is the acquisition of someone’s private land. However, there are several other items as well that can be taken by eminent domain including:
- Intellectual Property, which may be a valid consideration in a business contract
There are a few different types of taking (or appropriation) that can occur, and they are pretty much what they sound like:
- Complete Taking
- Partial Taking
- Temporary Taking
- Regulatory Taking
A regulatory taking occurs when regulation affects a property to a degree that it can no longer be used. Regulatory taking can either be complete taking of the property, or partial taking if only part of the property is deemed to be unusable.
HOW DOES THE GOVERNMENT DETERMINE WHAT PROPERTY IS TAKEN BY EMINENT DOMAIN?
The process in which eminent domain is invoked begins with a public improvement plan or a broader expansion plan. After it is determined which properties will be affected by the plan, the government works with its own appraisers to determine a just amount of compensation. As stated in the Fifth Amendment the government MUST offer just compensation for any land that they are planning on seizing in an eminent domain case.
If the property owner agrees to the amount, the process proceeds accordingly. However, if a property owner does not agree with the valuation, the process will move into condemnation proceedings, where the property owner and the government work together in an attempt to determine a fair outcome.
If a property owner refuses to an agreement altogether, they can challenge the process. However, if the government’s action meets the legislative and constitutional criteria, the property owner is not likely to be successful and may also be held liable for court costs.
SO, IS YOUR PROPERTY AT RISK?
Technically, Yes. If you own property, it is at risk for an eminent domain case. If eminent domain is invoked against your property, there are not many options to keep it from being seized. Unfortunately, there also isn’t much that can be done to protect your property from an eminent domain case.
The good news is, eminent domain cases are not particularly common, so the chances of being involved in one are slim.
CAN I WIN AN EMINENT DOMAIN CASE, OR IS THERE NO HOPE?
Many people HAVE won eminent domain cases when it comes to the valuations of their properties. The process, however, can be lengthy and expensive, so most property owners opt out of pursuing further compensation.
If you are planning on purchasing land through a private sale, Title Insurance might be a good idea. This type of insurance guarantees the individual or lender, i.e., the policyholder, a marketable title. So, say someone is trying to sell you a piece of property but hasn’t disclosed that part of that property has been laid claim to by the government for eminent domain. The title search would expose that, letting you make a more informed decision about your purchase.
Please remember… While the idea of having your property seized by the government is a frightening one, it is not a common occurrence. If you are facing an eminent domain case, it is a good idea to reach out to an attorney that specializes in that field.
Do you have questions? Please contact us to discuss your situation. We are here to help.
Disclaimer: Please note that this blog is informational only and is not meant to provide legal advice. Each situation is different and requires informed care and decisions. Please seek guidance from a licensed attorney before proceeding with your transaction.