Just Compensation Constitutional Clauses
Just Compensation is a term that appears in the Fifth Amendment of the U.S. Constitution. The relevant language of the Fifth Amendment provides that nor shall private property be taken for a public use, without just compensation. Since it was written into the Constitution some 230 years ago, courts across the U.S. have interpreted and narrowed down the meaning of eminent domain just compensation.
The Texas Constitution contains a similar clause that provides: No persons property shall be takenfor a public use without adequate compensationand only if the taking is for the Stateor the public at large or an entity granted the power of eminent domain under law.
Eminent Domain Frequently Asked Questions
How does the State acquire my property?
The State can negotiate to buy your property just like any other buyer might. If you and the State can not agree a price, though, the State can proceed with eminent domain. Eminent domain is simply the legal process that has been established to allow governments to gain ownership of private property. Eminent domain formally begins when the State starts a lawsuit to take your property. These lawsuits do not affect your credit rating or allege that you have done anything wrong.
What criteria are important for selecting an appraiser for an eminent domain case?
An eminent domain appraiser should meet the following standards: a. Thorough understanding of eminent domain valuation rules b. Experience with property type being acquired c. Ability to write a comprehensive and thoroughly reasoned appraisal report and, d. Ability and experience as a witness in court. Learn more about the importance of selecting an appraiser in eminent domain law.
Can I stop the government from taking my property by the use of its eminent domain powers?
The eminent domain process can be stopped if the proposed taking does not meet the requirements for public necessity or public purpose. If these tests are met, the government cannot be stopped from taking your property, but the government cannot dictate the price it will pay, either. Learn more about challenging the right to take in eminent domain.
What Happens In A Condemnation Proceeding
In a condemnation proceeding, you can argue before a court that the government has no right to take your property or that its not offering you a fair value for your land and property. The court will determine if the government is legally entitled to take your property and is making a fair offer for it.
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How Is Just Compensation Determined In An Eminent Domain Matter
Landowners who face having their land taken by the government for a public project such as a highway, utility easement, or school building have likely heard the term just compensation. But what exactly does just compensation mean to a landowner? The U.S. Constitution holds the answer .
A basic definition of just compensation
Just compensation in a total taking scenario is simply the value of your entire property. Just compensation in a partial taking scenario can be viewed in terms of difference of your propertys value before the taking less what it is worth after the taking . The difference is the amount of total just compensation due. For example, if your property was worth $300,000 before the taking, and then it is worth $225,000 after the taking, total just compensation would be $75,000. Most appraisers will break down the $75,000 amount into the components of just compensation , including the portion attributable to the land taken, land improvements taken, residue damages or other damages.
Indiana law provides substantial guidance on determining just compensation and what is or is not included in determining the amount of the offer that can be made. Obviously, real estate appraisers are the primary experts for purposes of substantiating your claim for total just compensation.
Calculating your lands value in an eminent domain action
Protecting your rights in an eminent domain action
History Of Eminent Domain
Eminent domain isn’t new, and it isn’t limited to the United States. You can trace the origins of this legal power to 17th century English common law.
The Founding Fathers of the United States also recognized the need to give the government the power to control land in the best interests of all citizens. They understood, too, that the government needed to provide property owners with fair compensation when taking their property. The Founding Fathers included eminent domain in the U.S. Constitution to resolve this.
The Fifth Amendment is better known for protecting those who are accused of crimes from having to give testimony against themselves in a courtroom. The amendment, though, also lays the ground rules for eminent domain with this statement: ” nor shall private property be taken for public use without just compensation.”
This guarantee of just compensation was later given to the states in court interpretations of the 14th Amendment. The principles of just compensation and due process are intended to balance the competing forces of public and private interests.
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The Quick Take Procedure
Certain state and local government entities have the power to use the quick take procedure to acquire property for right of way. The quick take procedure allows the government entity to take possession of the property by following negotiation procedures set out in statute . Should these negotiations fail or they are not required for that government entity, the property may be acquired upon offering to buy it and depositing the amount of the purchase offer with the clerk of the district court in the county where the property is located. The clerk must notify the landowner that the money has been deposited. If the landowner disputes the taking of the property or the amount offered for it, the landowner must appeal to the district court.
- In all other situations, the condemnor is not allowed to take possession of the property until the amount of just compensation has been determined through the court system and that amount has been paid to the landowner or deposited with the court. The court process begins when the condemnor serves the landowner with a Summons and Complaint.
What Are Eminent Domain And Fair Compensation
The government often starts large projects, some of which require the use of someones private property. For example, a new highway or hospital project would likely take up a lot of space and require purchasing neighboring lots. When this happens, its required by law to provide just compensation to the property owner. This is known as eminent domain.
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Answers To Your Texas Eminent Domain Questions
Who Can Take Private Property Through Eminent Domain In Texas?
Under Title 10, Subtitle E, Chapter 2206 of the Texas Government Code, federal, state, county and municipal governments have the authority to take property through eminent domain, as can water districts and school districts. In addition to these, public utility companies also have been allowed to use eminent domain for power lines, pipelines, transformers, etc.
The Reasonable Person Standard
Are your expectations for compensation from the DOT reasonable? Said another way, would a reasonable buyer pay the amount youre asking for the property? For example, its probably not reasonable to expect your property to be worth a lot of money when all similar properties are being foreclosed. However, it is probably reasonable to expect the DOT to pay more for your developed property than they paid for your neighbors vacant farmland.
Of course, reasonable people can disagree over what is reasonable. Thats why eminent domain attorneys exist: So that you have resources, knowledge, and experience on your side to even the playing field in your negotiations with the government. Contact us for a free case evaluation.
An attorney can evaluate your case for free. Why take any chances? Call today to find out how much compensation you could receive.
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How Does The Eminent Domain Compensation Process Work
As a landowner facing eminent domain, you likely have many questions about what the future will hold. Your property is being taken away from you, and you cant get a straight answer from anyone about how eminent domain works and what to expect.
Fortunately, our team of experienced eminent domain and condemnation attorneys is here for you during this tumultuous time. Well break down the steps of exactly what happens in the eminent domain compensation processand what we can do to ensure you get what you are entitled to under the law.
What If I Refuse Eminent Domain
There are some clear guidelines for eminent domain. They are that the property will serve a public purpose, that just compensation is offered, and that the property is acquired. It is fairly easy for the government to assert its fulfillment of constitutional responsibility and therefore, it is usually not possible to refuse eminent domain. The most that most property owners can hope for is a high market valuation, or to engage in a lawsuit.
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Professional Representation Can Be Key To Maximizing Relocation Costs
There may be a disparity between what the relocating party says it costs and what the agency claims it should cost. This can be a topic for discord and those involved may require legal guidance to try and maximize what the relocating party will get.
To ensure the person receives a reasonable amount when relocating, it is important to be protected by legal professionals who are experienced in all areas of eminent domain law. Calling for help as soon as the eminent domain process gets underway is a good idea to be fully prepared.
Owners Need To Be Properly Compensated For Partial Takings
In some instances, the government may not want to take an entire property, but rather just a portion of it. This is called a partial taking. A common example of a partial taking would be a road widening, where the condemnor would take only the land needed to increase the size of the road.
Determining compensation for partial takings can often be more complicated than doing so for complete condemnations. When a partial taking occurs, the government must not only provide just compensation for the land that was actually taken, but also severance damages for any decrease in value to the remaining property.
For example, imagine a situation where part of a retail stores parking lot is taken to widen a road. While the owner would obviously be entitled to the market value of land area seized by eminent domain, it may be more important to consider how the taking would affect the remaining property. Having fewer parking spaces could materially impact the utility of the remaining property for retail purposes, or might restrict the kinds of vehicular traffic that could maneuver around the property, such as large trucks which visit the property for deliveries, and the owner would need to be compensated for that.
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What Constitutes A Taking
In most cases, the fact that a taking has occurred will be obvious. If the government physically appropriates part or all of a property for public use, that obviously constitutes a taking. When the government physically takes property, this is called a âcondemnation.â For example:
John owns a house in Oklahoma City. One day, a City official knocks on Johnâs front door and announces that the City needs some extra room for electricity wires. Therefore, the City is going to condemn the 3 foot wide swath of Johnâs property adjacent to the sidewalk and run electricity wires along that area. Clearly, this is a taking. Therefore, the City will have to compensate John by paying him the reasonable value of the property that the City is taking.
Permanent physical occupation by the government of a given area within a property is also considered a taking even if the government does not dispossess the property owner of actual ownership of the property.
Government regulation of a property, through zoning laws or other administrative rules, on the other hand, is not generally considered to be taking property. However, if a government regulation leaves the owner with no economically viable use of his or her property, then it will be considered a taking. For example:
Recovery Of Attorneys Fees
Some states also have laws entitling property owners to recover their attorneys fees for challenging the governments exercise of eminent domain. These statutes are not absolute meaning that they dont apply in every case but when they do apply they provide valuable benefits to property owners. As an example, Ohio law provides that property owners can recover their attorneys fees if the final compensation awarded is 125 percent or more of governments good-faith offer prior to litigation.
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Who Can Receive Relocation Costs And How Much Will It Be
Once the appropriation of the property under eminent domain is taking place, an owner, a tenantcommercial or residentialcan receive payment for moving costs and other expenses.
They can ask for compensation for reasonable expenses related to the move. That involves their family, a business, a farm operation or other types of personal property. They can receive payment for direct losses of tangible personal property due to moving it or the discontinuation of a business. It is vital to remember that the agency will determine the reasonable expenses, so this could be a topic for disagreement as to its value.
The business or farm would also need to find a new location. The agency that is exercising eminent domain would need to pay those expenses. It cannot exceed $2,500. To reestablish a farm, nonprofit or small business that was moved, these reasonable expenses would also need to be paid by the agency. The maximum is $25,000.
A Summary Of Landowner Rights
A landowner has the right to:
- Negotiate with the condemnor before condemnation proceedings begin
- Receive a copy of the appraisal done by the condemnor or a written statement and summary showing the basis of the condemnors offer
- Request and receive a list of neighboring property owners to whom offers have been made, including a map of the affected property and the list of adjacent landowners whose property is affected by the project
- Ask a judge to decide whether the property the condemnor wants to take is necessary for the proposed use
- Have a judge or jury decide the amount of just compensation
- Appeal a court decision regarding public use, necessity, or just compensation and to ask for reimbursement of attorney fees and costs.
The foregoing general information is not intended to describe every right a landowner may have or cover every situation. It also does not address the eminent domain process used by the federal government or by a private entity which gets condemnation power from federal law.
- The Office of Attorney General is prohibited by law from giving legal advice or assistance to private businesses or members of the public. For legal advice or more information, please consult an attorney in private practice.
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Do You Get Paid For Eminent Domain
Has the government decided to take your land under the power of eminent domain? You might be wondering, Do you get paid for eminent domain?
The short answer is yes. If the government, or some other condemnor , is taking your property using the power of eminent domain, they must pay you just compensation.
In this blog post, well answer the question, Do you get paid for eminent domain? in more detail and discuss steps you can take to ensure you get fair compensation for your taken property.
Are Relocation Costs Added To Compensation For Eminent Domain
Ohio property owners might believe the laws for eminent domain are unfair. However, once the decision is made for a federal, state or local agency to take over a persons property through the process and the objections have been lodged and denied, it is important to remember the owner and others still have certain rights.
For those who are obligated to vacate the property, it is important to be fully aware of their ability to recover compensation for the costs of relocation. To keep from being taken advantage of after eminent domain and get the maximum to relocate, it is important to have professional assistance.
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Kelo V City Of New London
In this pipeline case, the city of New London, Connecticut was granted through the right of eminent domain to seize several private properties and transfer ownership to New London Development Corporation, a private developer.
The plaintiffs refused to sell their property, which caused the city to condemn the properties and forced the plaintiffs to accept compensation. The plaintiffs, including Suzette Kelo, argued this was a violation of the public use element, as the land would be used for economic development rather than for public purposes.
The court ruled the development plans for the properties included public use, therefore serving a public purpose. The ruling allowed the transfer of ownership of the properties, as the wording public use isnt confined to its literal meaning, but rather a general public benefit.
Three Dos And Donts If Your Property Is Subject To Eminent Domain
You just learned that a new road, waterline, pipeline, etc. will be built through your property. What happens next? What are your rights? What should you be on the lookout for?
In this article we discuss three basic Dos and Donts to help you know what to expect.
DO ask for the appraisal that the offer to purchase is based on.
Once the project has progressed from a proposal to a relatively final plan , an appraiser and/or a right-of-way agent affiliated with the entity taking your property will likely visit your property. They will prepare an appraisal report to determine the fair market value of your property. This forms the basis of their offer.
DONT tell the Condemnor how much you think the property is worth.
When the appraiser and/or right-of-way agent visits your property, he or she will attempt to engage in seemingly friendly conversation about the value of your property. Keep your guard up. They are fishing for information.
Do not tell them what you think the value of your property is. This admission can be used against you if you try to get more for your property later. When your property is taken under a right of eminent domain, you are allowed to make assumptions about the highest and best use of the property when valuing it. This can lead to farmland being worth much more than you think if it is suitable for residential or commercial development. It is best to keep any comments on value very general it is worth a lot!
DO ask about relocation expenses.
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