The Basics of Eminent Domain

Eminent domain is the power of the government to take private property for public use. The Fifth Amendment to the U.S. Constitution provides that the government may only exercise this power if it pays “just compensation” to the property owner.

Eminent domain is used to acquire property for various purposes, including building roads, railways, and schools. In recent years, eminent domain has been controversial because some governments have tried to use it to take property from one private owner and give it to another, usually for redevelopment.

In Texas, the legislature requires the Landowner’s bill of rights to be provided to any landowner whose land is being purchased under eminent domain.

Types of Property That Can Be Taken

Almost any type of property can be taken by eminent domain as long as it is done for “public use.” For example, in one case, the Court ruled that a city could use eminent domain to take land and then transfer it to a private corporation so that the corporation could build a shopping mall. The Court said that even though the mall would be privately owned, it would still be open to the public and serve a “public use.”

Just Compensation

When exercising its power of an eminent domain, the government must pay “just compensation” to the property owner. Just compensation is typically equal to fair market value based on a current appraisal—the price a willing buyer would pay a willing seller for the property on the open market. However, just compensation can also include other factors, such as unique benefits, disadvantages, and land use associated with the particular piece of property being taken.

The Process of Eminent Domain

The process of exercising eminent domain generally follows these steps:

  1. The government agency wishing to take the property identifies a project (such as building a highway) that it wishes to carry out and determines that acquiring certain pieces of private property is necessary for the project to proceed;
  2. The government agency sends notice along with a formal offer by certified mail informing each affected property owner of its plan;
  3. Each affected property owner is allowed to negotiate with the government agency regarding just compensation;
  4. If an agreement cannot be reached during negotiations, the government agency will file a lawsuit seeking to purchase the land through the court system;
  5. Constructive possession is granted through deed or when a special commissioner’s award is deposited with the Court. At this point, the government agency can move forward with the project;
  6. After a deed is filed or a judgment has been reached, and just compensation has been determined (either through negotiation or litigation), ownership of the property is transferred from the previous owner(s) to the government agency;

Conclusion

While eminent domain has been used throughout history for valid public projects such as building roads and schools, recent controversy has arisen due to some governments’ attempts to misuse this power for economic development. Therefore, homeowners should be aware of their rights if they ever find their property subject to condemnation proceedings. In addition, suppose you have questions about whether your rights have been violated or you are not receiving just compensation for your property. In that case, contact the Owners Advocacy Group for more information about our services.

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