Eminent domain is the power of the government whether it be federal, state or local, to take private property for the purpose of converting it for public use or for the common welfare. The Fifth Amendment to the Constitution requires that the government must fully compensate the property owner for the value of such property. Water, land and property rights are subject to eminent domain.
When the government exercises its power of eminent domain, known as condemnation, it can take any kind of private property. The most common example of private property is land, but leases, stocks, options or anything that has an ownership component can be taken. Intangible assets such as a brand or trademark are also fair game.
Confiscating land is an obvious demonstration of the government “taking” something, but there are other illustrations of “taking” that fall under eminent domain law. Permanent physical occupation of a given area on private property, such as running pipes or wires on private land constitutes a taking and the landowner must therefore be compensated accordingly. Resources taken from private land such as rocks or timber to build a public highway are also taken property and must be compensated. Generally, government regulation of land does not qualify as a taking unless the regulations leave the owner with no viable economic use of the property.
The issue of fair compensation can be a matter of dispute. If the government decides to condemn the property, it will designate someone to meet with the owners to offer what it deems is the fair market value of the property. There can be some negotiating, but it differs from a normal transaction where the owner would have the option to walk away from a deal considered unsatisfactory. If the compensation offered does not seem reasonable, the owner has the option to bring the matter before a judge who will decide the outcome. Sometimes a favorable outcome also means that the government must pay the legal fees of the owner.
Every state has different laws regarding condemnation. Proceedings do not have to go through a court if a contract can be agreed upon for the taking of the property for public use. The owner of the property has a right to due process and must be notified in a timely manner of the taking. He or she must be given an opportunity to voice an opinion as to whether the public use of the condemned property is justified and if the compensation for the property is fair and reasonable. The owner may present evidence and question and cross examine witnesses and has an automatic right to appeal through due process.
Condemnation proceedings have two parts. The first determines the right of the condemnor to take the property. The second determines the amount of compensation that will be paid to the owner. During the proceedings, the owner may continue to use the condemned property as long as the use does not change the condition of the property or diminish its value.
Attorneys at MacMain, Connell & Leinhauser have extensive experience representing and counseling government entities and their officials. Submit an online inquiry or call our Malvern, Pennsylvania office to learn more about the services we provide.