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Federal Guidelines on Eminent Domain

Posted on October 10 2014 by Gabriela Ocampo

Eminent domain is the practice whereby federal or state governments have the power to initiate a taking of a person's real property for the benefit of the public good. The concept of eminent domain as it is recognized today is based on the Fifth Amendment to the United States' Constitution's Takings Clause. It allows a government entity to exercise the power of eminent domain as long as fair compensation is provided to the property owner.

There are in totality 51 entities that can use eminent domain; all 50 states plus the federal government. While the Fifth Amendment technically only applies to the federal government, the United States Supreme Court has ruled that this right extends to the state governments.

Of course, the federal government cannot just decide to take somebody's land just because they feel like it. In order to enact a proper taking, the two issues at play are:

  1. The taking must be for "public use" to be considered valid
  2. When an eminent domain claim is set forth, it must include just compensation

The use of condemnation takings by the federal government was officially recognized in the landmark decision Kohl v. United States (1876). The Supreme Court did not claim to grant the power to the federal government, rather stipulating that the power was inherent to any existing sovereign entity (read: government).

In recent years, state governments have attempted to expand their powers of eminent domain. Cases like Kelo v. City of New London saw municipal and state governments try to enact takings that benefited the public good in name only. Kelo saw New London try to take private property that was to be then transferred to other private developers. The new developments would have increased New London's tax base and created new jobs.

Conversely, the federal government has limited its own ambitions. Executive Order #13406, entitled "Protecting the Property Rights of the American People," was enacted in 2006. It states that federal entities can only take property for public projects such as roads or hospitals, and not to be passed on to third parties.

Once a takings claim has been enacted against a property owner, they have three options. They can accept the offer, giving the federal government 30 days to pay them the amount offered, or a property owner can refuse to sell outright. Once they refuse, court actions are commenced. Successful defenses include contending the federal government is not offering fair market value, or that they are attempting to take more property than is needed to complete the project.

If you are facing an eminent domain taking, and want to know your rights as a property owner against the federal government, contact Century Law Group. We always stand up for the rights of property owners in possible takings, meaning our allegiances are clear. We will fight for your right to fair market value, getting what you deserve for your home. Century Law Group gives you the leverage in such matters, ensuring you get full value from the federal government for your property.