Eminent Domain: When Government Has the Right to Take Your Property

Closeup hands of real estate agent and customer handshake together after agreement together about credit house and insurance, client and consulting of investment about residential, business concept.

Eminent Domain concerns the right of the government or other authorized entity to force a sale of private property for “public use.” The law of eminent domain is grounded in both federal and state constitutions, and as long as certain statutorily established criteria are met, is broadly construed. Notwithstanding this broad construction, property owners also have their own rights in eminent domain proceedings, which include defenses to the eminent domain process altogether.

The Ins and Outs of Eminent Domain

A key aspect of the government’s right to take private property is that the intended use of the property must be public. Obvious public uses include highways, parks, schools, public utilities, among other possibilities. Public uses under eminent domain law, however, also include those meant for a “public purpose,” which can bleed into uses that also incidentally benefit private owners. For example, under federal law, condemning private property for the control or benefit of a second private owner is still considered a public use, if the purpose of that use is “economic redevelopment.” In California, however, this particular type of “public purpose” condemnation has been somewhat restricted; in 2008 the California Constitution was amended to prohibit the government from forcing the sale of an owner-occupied property for such redevelopment purposes.

Additional limitations, or defenses to the government’s right to take private property for a public use lie where the use is merely for public convenience or advantage rather than public “necessity”, or where the stated public use is unduly vague, or when the agency does not actually intend to put the property to the identified use. And, the proposed public project must be conducted in a manner most compatible with the public good and the least private injury. For example, an agency’s failure to comply with the California Environmental Quality Act during a proposed project review for which eminent domain is necessary to accomplish, may result in a later dismissal of that agency’s condemnation action.

Another key aspect of eminent domain is a payment of “just compensation” to the property owner for the government’s taking. In other words, even if the agency successfully establishes its right to take your property under eminent domain law, it still must pay you fairly for it. Fair payment under eminent domain law includes both payment for a fair market value of the property’s “highest and best” use, as well as any damages caused by the taking. Damages can include those related to pre-condemnation activities, such as those that interfere with the owner’s use of their property, or those attributable to the impact that the taking has on any remaining portion of the private property.

Contact A Real Estate Lawyer Today

Overall, the eminent domain process is complex, and defending one’s private property rights against the government can be overwhelming. However, by asserting available defenses and ensuring any valuation of the condemned property is done properly, property owners can, and should, be made whole under the law.

If your property has been identified for condemnation or eminent domain, you should contact Emily L. Brough at Zacks & Freedman, PC for guidance. Contact us at your convenience to request a consultation.

Neither this website nor this post are intended to create an attorney-client relationship.