Eminent Domain or Condemnation: Overview

Eminent domain, also known as expropriation law, allows the state to acquire your property when it wants to use it for public use. They are allowed to do this because of the Fifth Amendment to the United States Constitution through the Fourteenth Amendment to the United States Constitution.

The Fifth Amendment states that “private property will also not be taken for public use, without fair compensation” (the most well-known section of the Fifth Amendment prevents self-incrimination and is used extensively in crime movies – this is the really juicy part of that). amendment). The words, though written in 1700, continue to have a clear meaning today: the government cannot take your property by paying you just compensation for it. The 14th Amendment is included here as it is the law that makes states adhere to the rules of the United States Constitution (also known as the enabling clause).

Although the words are simple and easy to define, the extent of their power has been widely debated. Take the word public use, for example. At first glance, it seems to be a fairly narrow word. As the case Kelo v. City of New London, however, defining public use can cause quite a stir. Although now limited by many state statutes, Kelo defined public use as essentially anything that benefits the public. For Kelo, this included the acquisition of property by the government to stimulate economic development, a definition that infuriated many people.

Fair compensation, on the other hand, has been defined quite narrowly since its inception. Simply put, fair compensation has come to mean what a willing buyer would pay and a willing seller to sell in an open and competitive market, without undue duress. Although it seems like a fairly comprehensive definition, essentially meaning fair market value, eminent domain law actually omits many of the factors that many want to use when determining fair compensation.

Expropriation generally occurs after a purchasing agent makes an offer for your property, although it is not a requirement in some states. Expropriation begins with the filing of an expropriation petition, which initiates an administrative process whereby various independent persons, often appraisers, are presented with information about your property and asked to assess the just compensation due for the acquisition. This can be a friendly or adversarial process, depending on the circumstances.

Once the court appraisers have heard from both parties, they suspend the session, often for several days, and issue a written report determining just compensation for the property. At that point, the state officially owns your property, although the process does not necessarily have to end there.

If either party is dissatisfied with the award, they can file an appeal, resulting in a jury trial, the goal of which is to determine just compensation owed to the owner (the condemnation itself is not a problem, just the damages). The jury award is the last word, and when the state pays the fair compensation determined to the clerk of the court, the matter is officially postponed.