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Eminent Domain Or Condemnation – An Overview

Posted on December 5 2014 by Gabriela Ocampo

The U.S. Constitution’s Fifth Amendment is the basis for the existence of the eminent domain concept and process. In a nutshell, eminent domain means that state governments have complete control over the property within their state borders. This encompasses private land as well as public land. As a result, state governments are empowered to take land as they see fit. It doesn’t matter if the land belongs to a homeowner, a business owner or if it is a public space. Thankfully, there is reciprocity for this taking of land. The state must pay “fair value” for land seized through eminent domain.

The majority of eminent domain land seizures occur to build important structures. Oftentimes, land is seized by state governments to build schools, government offices, roads and utilities. Yet eminent domain can also be used to take land for private properties as well. Although this sounds odd, there is some logic to it. When state governments decide that specific areas are ideal for entities that operate in the private sector, they can seize that land as doing so benefits the interest of the community as a whole. The private entities are then allowed to build their facilities on this land. It is best to think of this occurrence as an exercise in utilitarianism. Eminent domain allows state governments to clear a path for the progress of industry that will benefit the local economy.

Many dislike the fact that eminent domain allows state governments to take land without obtaining the consent of the current land owner. As long as the state provides ample compensation to the property owner, the eminent domain process will continue unimpeded. Eminent domain was especially popular back in the middle of the 20th century in the aftermath of World War II. There was a strong push for highway expansion at the time and state governments took considerable amounts of land for a variety of these public works projects. Nowadays, eminent domain isn’t as prevalent. It has become an unpopular law and its practice rarely occurs.

When land is taken by a state government, the legal process of “condemnation” occurs. The nuances of the condemnation process differ according to each state yet there are some standards that transcend geographic boundaries. State governments initiate negotiation of compensation for land that they’ve deemed to be necessary for public or private use. This land is supposed to be of particular benefit to the general public. When the state government reaches the decision that certain land will be seized through eminent domain, a “taking” occurs. Property owners can negotiate with representatives from the state government in order to determine appropriate financial compensation through a hearing where a “fair value” is determined. Or, they can agree to the initial figure provided by the state’s representatives and release the property’s land deed to the state government.

If the property owner decides that he doesn’t want to sell his land, the state government is forced to either withdraw its eminent domain claim or file a court action. If a court action is filed, a hearing is held in which the state government sets forth an argument to explain why the land in question will enhance the public good. The state bears the burden of proof to show that good faith negotiations occurred with the property owner. If the state government provides a convincing argument, the court will order that the land in question be sold at a “fair market value” as decided by an appraiser. Yet the battle might not end here. The property owner as well as the government can appeal the court’s decision.