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Eminent Domain Law – Determining the Larger Parcel

Posted on September 15 2014 by Gabriela Ocampo

Eminent domain is provided for in the Fifth Amendment of the U.S. Constitution. This allows a government entity, whether local, state or federal, to take private property for governmental use without the consent of the owner. The only caveat is that the property owner must be given just compensation. What amounts to just compensation is a subject of frequent litigation.

An issue can arise in an eminent domain seizure if the government uses its eminent domain power to take part of your property that is part of a larger parcel. The loss of part of the larger parcel may decrease the value of the property that is left after the partial taking. When this happens, the governmental entity is required to pay you for the property taken and, in addition, to pay you severance damages. Severance damages are designed to compensate you for the decreased value of your remaining property.

Proving that the property taken was part of a larger parcel is not as simple as it seems. There are certain elements that must be met in order for the part taken by the government to qualify as part of a larger parcel and therefore require severance damages. You must prove what has been referred to as the "three unities."

1) Unity of ownership: The property taken must be owned in the same name as the property claimed to be part of the larger parcel. If you own part of the property as an individual and the other part of the property in the name of your corporation, there is no unity of ownership and you will not meet this requirement. Neither will you meet it if one parcel is in your name and the other parcel is in your spouse's name.

2) Unity of use: Both the parcel taken by the government and the remaining parcel must have been for the same use in order for them both to be part of the larger parcel. The use of the parcel seized must be integral to the use of the parcel not seized. Otherwise, it is not part of the larger parcel.

One example that is frequently used is for a restaurant and a parking lot. If the parking lot is seized and its sole use was for restaurant parking, it has a unity of use with the restaurant. If the parking lot had been used for general parking for other businesses on the street, and restaurant parking was only an incidental use of the parking lot, there would not be unity of use.

Another example relates to farm property where 140 acres are used to grow crops. Twenty acres are used to store farm equipment used to cultivate the crops. The 20 acres are necessary for the cultivation of the crops on the 140 acres, so they are part of a larger parcel.

3) Property is unified by its contiguity: Literally, this original meant the property taken had to touch the remaining property in order for it to be considered part of the larger parcel. This rule has been relaxed somewhat. In the restaurant example, a parking lot across the street from the restaurant was deemed by the courts to be part of the larger parcel.

If part of your property is under threat of being taken by a governmental entity under the guise of eminent domain, you need the assistance of attorneys who work on behalf of citizens threatened with loss of property. The law is complex. You want to be sure that, at a minimum, you receive all the compensation for your property to which you are entitled.