Q: What is EMINENT DOMAIN?
A: Eminent domain is the power of the government to take private
property belonging to its citizen's. It can also be called
"condemnation" or, in some states, "expropriation."
Q: Can EMINENT DOMAIN be used to
take my private property and give it to another private party?
A: The federal and state constitutions all say that property may
only be condemned for "public use." For many years, governments
applied that term to mean that property could be taken for things like roads,
schools, and public buildings.
Starting in the 1950s, eminent domain became increasingly used for "slum
clearance." Once an area was declared to be a slum or blighted, it could
be cleared using eminent domain, and the property could often then be
transferred to another private party. Increasingly, over the second half of the
twentieth century, local governments have tried to use eminent domain in order
to transfer land to other private parties. Whether and under what circumstances
courts will allow this abuse of eminent domain is a matter of state law.
Several states permit condemnations for economic development, but some do not.
You will have to research and/or consult with a local lawyer to determine if
the particular condemnation in your situation is legal. It may violate your
state constitution. Also, sometimes agencies fail to comply with state statutes
or required procedures, and such failures will also make the condemnation
illegal. But even if you happen not to ultimately prevail in court, however,
you still have morality and justice on your side.
Q: The government says they can
come on to my property, even if I don't want them to and even
though I still own the property. Is that true?
A: Again, this is a question of state law. Usually, but not always,
the government can hire an appraiser to appraise your land, and that person
will be able to come onto your property. However, in some situations, such as
where no condemnation power exists, you may be able to prevent an appraiser
from entering your property. You will need to do research or contact a local
lawyer to find the answer to this question.
Q: What does it mean, "To Make an Owner Whole"?
A: Making the owner whole means fully compensating the owner for
the loss. There are practical measures that can be taken by the attorney and
the experts that will help make the owner whole. Sometimes you need only to be
paid for the property acquired. Sometimes other damage issues arise, requiring
you to be compensated for the damages to the remaining land incurred as a
result of a taking. “Cures to the remainder” are sometime available that can
defer or mitigate some of the damages to the remainder property.
and his team of experts can recognize these issues and use their expertise to
obtaining monetary compensation, or find a cure, or a partial cure to the
problems. A judicial determination of just and fair compensation must be made
according to the facts and circumstances of each case. Each property is unique
and each condemnation is also unique. There are many factors that influence the
value of your property. Attorneys who concentrate in eminent domain have the
experience, imagination and innovation to develop strategies to make you whole
Q: What are my settlement
A: The Department of Transportation and many condemning authorities
have procedures in place to negotiate in good faith with the owner prior to
filing a lawsuit to acquire a parcel. The condemning authority contacts the
owners regarding where they may review the acquisition plans. Often public
meetings held to obtain input on the project design from nearby owners. If you
have an attorney representing you during this process, the attorney may obtain
an earlier reasonable settlement for you. Sometimes, an attorney can make
suggestions to the condemning authority which may minimize the prospective
damage to a parcel. The pre-suit process can be complicated and participation without
representation may subject the owner to a variety of intrusive requests from
the condemning authority. An attorney who is involved at the onset can protect
your rights even before a lawsuit is filed.
Eminent domain cases, like most lawsuits, are usually settled
through negotiation, not trial. It is in everyone’s best interest to resolve
legal actions without lengthy litigation, and eminent domain cases are no
In eminent domain, settlement opportunities tend to occur at defined
stages throughout the process:
* Initial offer and counteroffer
* Immediately prior to the Order of Taking hearing;
* At mediation (a confidential settlement negotiation session with
a neutral mediator assisting in the process), the stage which has become the
best opportunity for an amicable resolution of a lawsuit; and
* Immediately prior to trial.