Hawaii Housing Authority V Midkiff
The central holding of Berman was reaffirmed in this 1984 Supreme Court decision. Hawaii had decided to break up a land oligopoly that grew out of the states precolonial property system. Using its eminent domain power, the Hawaii legislature redistributed much of this land to a greater number of people, arguing that it was in the public interest. The Supreme Court called this a valid public use and emphasized that it would largely defer to legislative determinations on the subject.Kelo v. City of New LondonThe 2005 Kelo case arose out of a municipal revitalization plan that called for transferring private property to a private economic development corporation. Ruling in favor of New London, the Court called the citys objective a valid public use as it had a rational basis to believe that approximately 1,000 new jobs would be created through the plan.
Elements Of Eminent Domain
To exercise the power of eminent domain, the government must prove that the four elements set forth in the Fifth Amendment are present: private property must be taken for public use and with just compensation. These elements have been interpreted broadly.
Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items. The rifle that was used to kill President john f. kennedy was considered private property in an eminent domain proceeding.
Taking The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents. Dirt, timber, or rock appropriated from an individual’s land for the construction of a highway is taken property for which the owner is entitled to compensation. In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.
Some property rights routinely receive constitutional protection, such as . For example, if land is changed from waterfront to inland property by the construction of a highway on the shoreline, the owners of the affected property are to be compensated for their loss of use of the waterfront.
The History Of Eminent Domain
The definition of eminent domain would not be complete without understanding where this concept originates. According to the Free Dictionary by Farlex, the idea of eminent domain stretches as far back as the Biblical era. Eminent domain came to America with the adoption of common law principles from England, and it has been upheld by federal and state laws since then. In the early years of European settlement in America, eminent domain was applied liberally and frequently, mostly because the country had an abundance of land that could be procured cheaply. A person who lost a parcel of property could usually acquire another quickly and easily. Accordingly, throughout the history of our country, ordinary citizens have been forced to question what is eminent domain?
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What Should A Homeowner Do When He Or She Receives Notice
It is important that a homeowner does not ignore the notice he or she receives. It should be taken seriously. Homeowners should contact an attorney to look over the paperwork and explain exactly what is happening. The attorney should also look over the intended use to ensure it is fair. In addition, a proper appraisal should be done to ensure the compensation is indeed adequate for the property being taken.
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How Is Eminent Domain Used Today
The governments use of eminent domain isnt seen much, as its often contested by the public. Recent eminent domain cases have dealt with private pipeline projects and energy companies that use fossil fuels, as seen in the PennEast Pipeline Co. v. New Jersey et al. discussed earlier.
Cases involving regulatory takings have become more popular. These occur when the government has encroached a landowners property rights so much that the owner claims deprivation from economic benefits.
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How Is Eminent Domain Different Than Land Condemnation
Although related, its important to note the difference between the two. We discussed that eminent domain laws are meant to provide compensation to landowners. But in the case of land condemnation, no compensation is given.
Land condemnation only happens when eminent domain cant be used. In other words, its when the federal government doesnt have the right to take your land. Land condemnation is used when the federal government takes your land immediately as opposed to at a future date. Eminent domain is meant to be used when the project will have long-term benefits for the general public. Land condemnation, on the other hand, is done to address an immediate issue, such as an emergency, a public safety, or a public utility issue.
What Did The Landowners Bill Of Rights Do
Also known as HB1313, the Landowners Bill of Rights and Private Property Protection Act was eminent domain legislation that excluded some of the interpretations of eminent domain authority. It specified that the taking must be for public use and defines it as follows:
- Possession, occupation, or use of land by the general public or state or government entities
- Use of land for public utilities
- Opening of roads/channels of trade and travel
- Acquisition of property where the title is clouded
- Acquisition of property where unanimous consent is received
- Remedy of blight
In other words, eminent domain power is not allowed solely for economic development for the public benefit. It must be for public use as defined by that list. The law contains many more details and defines terms to limit the states power to condemn.
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Land Acquisition And Condemnation Process For Public Works
If the government plans to acquire your land, it will usually initiate the process by sending you a letter offering you a conditional sale of your property. Once you sign the agreement, the government will send you a notice of intent to acquire.
This is a 10-day letter that indicates the governments intent to acquire your land. If you dont respond to the letter or sign a waiver, the government can issue a plain and valid eminent domain action. This means the government has obtained the proper authority to acquire your land.
The government then obtains a final condemnation order from a court judge. This order authorizes the government to acquire your land through eminent domain.
You may receive a notice of appraisal or notice of intent to appraise at some point during the process. This is a letter informing you that the government plans to hire an appraiser to determine the value of your land.
You may also receive a letter requesting that you sign a consent to appraisal. This letter is essentially a waiver allowing the government to appraise the value of your land. If the appraisal turns out to be less than what you initially received in the conditional sale, you can still negotiate a higher value.
How Eminent Domain Works In Real Estate
If you own property, how might eminent domain impact you? What steps will a government take if it wants to claim your property for a public project?
Theres a process to eminent domain. The government wont show up and say theyre taking your land tomorrow. Instead, they must follow a series of steps.
Lets say the government wants to expand a highway to relieve traffic congestion. To make that plan work, it needs to purchase your residence and demolish it.
What usually happens is that the governmental authority that wants your land will offer to buy your property at a specific price. If you accept the offer, the sale goes forward and you can use the proceeds to find a new place to live. If you dont like the offer, you can negotiate for more money.
If you dont wish to sell under any circumstance or cant come to an agreement on a price, these differences are resolved in a condemnation proceeding.
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When Can A Government Use Eminent Domain
A United States government, either federal, state, or local, can use eminent domain when acquiring land for public projects that are necessary or for economic development. This means the government must show that their project is necessary and that it benefits the public.
The government must also show that taking the land is a last resort after other efforts to acquire the land have failed. If the government initiates eminent domain for highway construction, for example, a road expansion or a new bridge may qualify as public purposes.
However, if local officials plan to build something deemed unnecessary, then there could be opposition.
Just Compensation Vs Fair Market Value
The Fifth Amendment of the Constitution holds that private property be taken for public use, without just compensation. To determine just compensation, the government appraises the property and determines its fair market value, usually by comparing the value of nearby houses or calculating how much itll cost to construct a new one. This is similar to what a real estate agent would do if you were selling your house.
In exchange for a just payout, the government takes over ownership. That helps explain why major sports stadiums are often built in lower-income neighborhoods: The just compensation is often much lower when eminent domain is exercised there.
If the property owner disagrees with the assessed value, they can hire their own appraiser or appeal in court, where a jury will decide the actual value of the property.
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Kohl V The United States
This was the first U.S. Supreme Court case pertaining to the federal governments rights to eminent domain. In this case, the federal government acquired private land to build a customs office, post office and other government facilities in Cincinnati, Ohio, without providing compensation to the petitioners.
The petitioners claimed the government didnt have jurisdiction to do so without proper legislation. They believed the government shouldve rather accepted an independent assessment of the lands value before compensating.
The court ruled in favor of the government, supporting the governments right to take the land under eminent domain rights.
Puntenney V Iowa Utilities Board
In more recent eminent domain cases, issues over pipeline constructions have been more prevalent. In this case, the petitioners believed the construction of the Dakota Access Pipeline over easements did not meet the constitutional definition of public use under both the Fifth Amendment of the U.S. Constitution and Iowa Constitution.
The other argument was the possible climate change effects caused by the construction of the Dakota Access Pipeline. However, the Iowa Supreme Court approved the construction of the pipeline, as it met the characteristics of public use under the Iowa and United States Constitutions.
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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.
Currently Counties Cities And Housing Authorities In Georgia May Exercise Redevelopment Powers Including The Power To Sell Or Otherwise Dispose Of Property Acquired By Eminent Domain To Private Enterprise For Private Use
The Kelo decision is one of the most controversial decisions issued by the Supreme Court in recent memory. Because the decision makes clear that state legislatures can limit eminent domain authority, the issue of whether and how to do so is one of the hottest currently facing lawmakers. As shown above, there already has been a burst of legislation attempting to deal with the Kelo ruling. In a rare display of unanimity that cuts across partisan lines, lawmakers in virtually every state are advancing bills and constitutional amendments to limit the use of eminent domain to take property for economic development purposes.
As it turns out, according to a press release issued by Susette Kelos attorneys at the Institute for Justice, the little pink house in New London, Connecticut that started a nationwide property rights revolt still stands one year after the U.S. Supreme Court heard arguments and then eventually ruled that it could be torn down for private development. Susette Kelo and her neighbors still remain in their houses. Shortly after the Kelo decision, the state legislature and the governor of Connecticut established a moratorium on all takings for economic development while the legislature revisited the law. In February 2006, the City Council unanimously voted to find a way to save the homes. Susette Kelo states that she has no plans to move out of her little pink house.
See, e.g., Maher v. City of New Orleans, 516 F.2d 1051 .
Id. at art. IX, § VI, ¶ III.
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So How Much Is Your Property Really Worth
The Fifth Amendment requires the government or condemning authority to justly compensate property owners for what it takes. It does not, however, define or enumerate what constitutes just compensation. This is where property owners often get confused and take much less than their property is worth.
When the government initiates an eminent domain taking, theyll also make you an offer for the property theyre taking. They do not have to show you how they arrived at their offer the state is not required to share its appraisals. If you take that offer, you get the money, and the state receives the property.
If you do NOT accept, the state deposits its offer with the Clerk of Court in the county where the property is and takes the property anyway. Thats right. Once the condemning authority often GDOT files with the county and deposits the money, it legally owns the land. However, if you did not accept the offer, you still have the chance to negotiate for more compensation.
There are right and wrong ways to do this, and the wrong ways could cost you a lot of money. Call us at the Georgia Eminent Domain Law Firm at , or contact us online for a free case evaluation.
What Is Eminent Domain In Real Estate
As a real estate agent, you will encounter the terms âlaw of eminent domainâ or âeminent domainâ in real estate. But what does it mean?
Eminent domain is the governmentâs right to expropriate private property for public use. In exchange for this, the homeowner gets compensated with the propertyâs fair market value. Letâs break this down a bit further:
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Final Thoughts On Eminent Domain In Real Estate
Eminent domain is an emotional experience. Nobody wants to lose their home. But, this is a power that the government holds over property owners.
For eminent domain to go into effect, there must be âpublic useâ involved. Examples include building highways, schools, or other necessities. If not, then there are no grounds for eminent domain to stand on.
Every week, we release in-depth videos to help viewers become successful real estate agents on our CA Realty Training YouTube Channel. Also, if you enjoyed reading this article, we would love if you could share it with a friend who you think would get something out of it.
What Can I Do About Eminent Domain Abuse
The website features an Eminent Domain Abuse Survival Kit, which offers tools and information to fight eminent domain, including timelines of the typical condemnation process, links to friendly organizations that can help battle condemnation, and outreach advice. If citizens band together, they can stop the bulldozers, said Bullock.
What does eminent domain mean in real estate?
Eminent domain: the governments right to purchase private property to complete a public project. Ideally, the government will offer you an amount that reflects or exceeds the value of your property.
Can a private business use eminent domain for public use?
Despite explicit limitations in the U.S. Constitution and nearly every state constitution that allow condemnations only for public usesuch as for public buildingsfor the past 50 years, unrestrained local and state governments across the nation have taken property for private businesses in the name of economic development.
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Public Use In Eminent Domain
Public use may sound pretty obvious, but it is actually quite nuanced. While we usually think of a road like I-40 or a state park as being available for the public to use, but public use can also refer to something such as a pro football stadium or for economic re-development.
In the highly controversial Kelo v. City of New London , the United States Supreme Court determined that the city could take the houses of private citizens and transfer the property to a private owner for development. They determined it was public use because there was a general public benefit of economic growth to the community. After this case, the houses were demolished and the developer was unable to find financing, leaving the property as an undeveloped empty lot. If there is any consolation to this, it is that the homeowners were required to be given just compensation for the property.
A Residential Example Of Eminent Domain
Lets say you own an acre of land with a house on it. There is a two-lane road in front of the house but lately youve noticed a lot more traffic since that shopping center opened down the street. Well, youre probably not the only one who has noticed this increase in traffic, the North Carolina Department of Transportation has noticed it too.
So one day you are out mowing your lawn and you see a sign being put up describing a road widening project. You go over and ask the official looking lady what is going on and she tells you that they are going to be turning this from a two-lane road to four lanes and will be taking part of your front yard to do it! You may start asking yourself if they are allowed to do this, and how they can go about taking your property for a road you dont even want. This situation is what we would consider a typical example of eminent domain.
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