Eminent Domain and Federal Law

The law of eminent domain originates in the "Takings Clause" of the Fifth Amendment to the U.S. Constitution. The framers of the Constitution were generally wealthy landowners who wanted certain guarantees against tyranny, although they understood that sometimes land would have to be taken for the public good. The Takings Clause states that "private property [should not] be taken for public use, without just compensation." As such, it only applies to private property and must be used for the public good. Interstate highways, to use a common example, typically are considered public goods.

What is 'Just' Compensation?

The Constitution requires that private landowners subject to eminent domain be paid "just" compensation, but what exactly does that mean? Generally, this is based on how much the landowner might expect to get on the open market. The value of the land could be determined by a number of factors, including its size and any resources it may have. Sometimes the government takes land for limited periods of time, which tends to make valuation much more difficult. If the police are able to prove "by a preponderance of the evidence" that the property was being used for criminal activity, then the government generally may seize the property without compensation.

Eminent Domain and Condemnation Proceedings

The government follows a particular process when it takes private land for public use under eminent domain law, beginning with its broader expansion or public improvement plan. Once planners determine which private parcels of land may be affected by these plans, they work with their own appraisers to come up with an appropriate valuation. If the private property owner accepts the offer from the government, the transaction is fairly straightforward. But if the parties are unable to agree on a price, the dispute will get resolved in condemnation proceedings.

If the matter goes into condemnation, the property owner (typically with the help of an attorney and an appraiser) will offer his or her own property valuation. One option for property owners is to dispute the forced sale by challenging the government's proposed use of the land, but these challenges typically fail as long as the use is determined to be "proper" and for the public good. Another option is to suggest that the claim is too broad, which in some limited cases may reduce the scope of the purchase. But the value of the property is generally the main issue when eminent domain cases go into condemnation proceedings.

What is the Meaning of 'Public Use?'

Since invoking eminent domain requires that the taken property be used for public use, it's important to understand what that means from a legal perspective. The term "public use" is not limited to the actual, direct use by the public -- as would be the case for parks or roads -- but refers to any use that generally confers a benefit to the public. For instance, a parcel of land with an abandoned factory may be obtained and cleared of all structures through eminent domain. Even if the end result is an empty lot, and not everyone "uses" the land, it could be argued that this benefits the community as a whole because of the aesthetic improvement from its removal.

Eminent domain can get confusing at times. Click on a link below for more details or speak with a real estate attorney if you have specific questions.