Skip Navigation LinksEminent-Domain-FAQ

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.

An attorney 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 again.


Q: What are my settlement options?

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 exception.

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.