Eminent Domain: Securing Your Rights and Understanding Compensation
Eminent domain grants government the authority to acquire private property for public use, provided just compensation is paid. Though this practice can be found in many countries under various names, eminent domain often invites lawsuits when property owners feel undercompensated.
Key Insights on Eminent Domain
- Eminent domain allows governments to seize private property for public purposes with fair compensation.
- This power extends over airspace, land, contract rights, and intellectual property, among others.
- Unfair invoking of eminent domain without adequate compensation is known as inverse condemnation.
- Property can be fully or partially seized, and temporarily as well.
- Private entities may also leverage eminent domain for public improvements under certain conditions.
The Essence of Eminent Domain
Eminent domain is validated under the Fifth Amendment of the U.S. Constitution. Terms such as “expropriation” in Canada and “compulsory acquisition” in Australia describe similar powers worldwide.
Common Examples
Condemnation proceedings facilitate the legal seizure of property, allowing owners to contest the cause and the fairness of compensated value. Eminent domain may requisition aspects like airspace for public projects, or necessary resources like water and soil to construct infrastructure.
Financial Assets and Intellectual Property
From leases to stocks, financial interests including intellectual property and patents can fall under eminent domain. Notably, municipalities have considered eminent domain for refinancing underwater mortgages.
Categories of Property Seizure
The government’s intended use determines how your property will be appropriated and compensated. Below are key types of eminent domain takings:
Complete Taking
A complete or total taking involves the entire parcel being seized. Although compensated at market value, property owners often feel shortchanged. Major public works often necessitate a complete taking.
Partial Taking
Partial taking involves seizing a portion of the property. This calculation is more complex and considers the affected value of the remaining property—a concept known as the remainder.
Temporary Taking
Temporary taking allows organizations to use property for a defined period, akin to leasing. For example, construction easements provide ongoing rental income to owners for project duration.
Regulatory Taking
Regulatory taking occurs through either total or partial regulatory taking. Total regulatory affects the property’s usability, whereas partial only impacts its functional value.
Understanding Just Compensation
Just compensation is aimed at reflecting the fair market value of the property, assuming neither the seller is forced to sell nor the buyer compelled to buy. Factors like land improvements and potential damages figure into this calculation.
Eminent Domain Misuse
While intended for public good, eminent domain has also been exploited. High-profile cases such as Pfizer’s controversial property seizure in New London stirred public debate and catalyzed state laws to mitigate abuse.
Inverse Condemnation
Disputes over property impact and compensation occasionally lead to inverse condemnation, where property owners can sue for damages resulting from government or private sector actions.
Real-world Examples
Legal action over environmental damage or fire-induced economic losses is common. Post-Hurricane Harvey, property owners sued under inverse condemnation after forced reservoir release led to flooding.
Refusing Eminent Domain
While eminent domain appears daunting, refusal is rare. Property taken should serve a public objective and be justly compensated. Owners may pursue higher compensation through legal processes.
Historical Context and Case Studies
Eminent domain rooted in the Fifth Amendment ensures government can secure benefits for public welfare, like necessary infrastructure. Numerous cases show claimants often win higher compensation values after disputing the initial offers.
Protecting Your Property
Preemptive measures against eminent domain are limited. Real estate and even intangible properties are vulnerable based on evolving public and governmental needs.
The Final Word
Eminent domain facilitates government appropriations for public use while ensuring fair compensation for private owners. Despite legal complexities and disputes over fairness, understanding your rights can aid in negotiating better compensation even in an eventual seizure scenario.
Related Terms: condemnation, just compensation, inverse condemnation, public use, takings.
References
- U.S. Department of Justice. “History of the Federal Use of Eminent Domain”.
- U.S. Department of Justice. “Anatomy of a Condemnation Case”.
- University of Michigan Journal of Law Reform. “Eminent Domain for the Seizure of Underwater Mortgages”.
- Congress.gov. “Consolidated and Further Continuing Appropriations Act, 2015”. Page 128 Stat. 2758.
- Congressional Research Service. “Innovation and Intellectual Property Issues in Homeland Security”. Pages 6-8.
- Utah Office of the Property Rights Ombudsman. “Takings and Eminent Domain”. Expand What is Just Compensation?
- JD Supra. “What Are the 3 Types of ‘Takings’ for Eminent Domain Cases in the US?”
- Biersdorf & Associates. “Types of Takings in Eminent Domain”.
- Legal Information Institute. “Eminent Domain”.
- Ohio Attorney General. “Eminent Domain FAQs”.
- Owners’ Counsel of America. “Dictionary of Key Terms”.
- Congressional Research Service. “Condemnation of Private Property for Economic Development: Kelo v. City of New London”.
- Detroit Historical Society. “Encyclopedia of Detroit: Poletown”.
- Congressional Research Service. “Condemnation of Private Property for Economic Development: Kelo v. City of New London”. Pages 1-4.
- CT.gov. “Post-Kelo Eminent Domain Legislation in Other States”.
- Institute for Justice’. “The End of an Eminent Domain Error: Pfizer Closes in New London”.
- League of California Cities. “Inverse Condemnation Fact Sheet”.
- U.S. Court of Federal Claims. “In Harvey’s Wake, a Rush to the Courthouse”.
