Land purchasers usually assume that when they take ownership of the title, the land belongs to them, undisturbed, forever. For this reason, many landowners are surprised when they learn that the government is entitled to take ownership of their land to make way for a road or pipeline.
If this happens to you, anger is a natural emotion. You believe it’s wrong and wonder, “How could this be legal?”
Can the government take your land?
Unfortunately, under federal and state law, certain circumstances allow the government to take your land. This legal power is known as eminent domain. It is the right of federal, state, other governmental, or quasi-governmental entities, and, in select instances, private companies to take private property for public use.
So perhaps it’s better to ask, can the government take your land without any restrictions?
The History of Eminent Domain
The history of eminent domain in the United States goes back to its founding. Some of the earliest examples involved a burgeoning federal government seizing tribal lands held by Native Americans. This began in the 1700s, during colonial years, and continued throughout the 1800s.
The U.S. military conducted many of these seizures, while others involved treaty agreements. Perhaps you’ve heard of the Trail of Tears? This infamous and tragic historical event occurred in the mid-1800s.
The U.S. government forcibly removed Choctaw, Chickasaw, Creek, Seminole, and Cherokee tribes from their homes. These tribes were then made to march from the southeastern part of the United States to what is now Oklahoma.
Eminent domain continued to be utilized throughout the 19th and 20th centuries and remains legal today. It’s a means of allowing the government to claim private property for public use. Other early examples of eminent domain include the federal government using privately owned land to expand highways, construct public buildings, bring water to populated, rural areas, and manufacture war materials.
How Is Eminent Domain Restricted?
Fortunately, limits do exist. The 5th Amendment to the United States Constitution states that no “private property be taken for public use, without just compensation.” This Amendment has been interpreted to answer the question, “Can the government take your land?” with a “Yes” if the following are true:
-The taking of the land is for public use or benefit.
-The “taker” provides the landowner just compensation for the taking.
What constitutes “public use” under eminent domain? Generally, this concept refers to projects that serve the public interest, including roads, highways, schools, parks, and other public facilities.
In addition, courts have found that governments can use eminent domain to address “blight” and build commercial development.
How Do Land Appraisals Work?
While the government can take your land under certain circumstances, it must provide just compensation to the property owner. “Just compensation” is generally measured by the property’s fair market value.
Many factors involve calculating the fair market value of a given property and the compensation a landowner deserves. This includes relocation expenses, lost business, damage to the remainder of the land, zoning, and more.
Before initiating eminent domain proceedings, the government and/or public entities (“condemnors”) generally make an initial determination of just compensation through the land appraisal process. In several states, the government will send a notice to the landowner that an appraisal is being performed to prepare for the acquisition and eminent domain process.
For many landowners, the notice of the appraisal is the first step in the land acquisition phase of a project and the eminent domain process. It will also likely be the first opportunity for a landowner to truly understand the size or “severity” of the acquisition of the property.
-Size and Location: The appraiser will evaluate the size of the land, its location, and unique features affecting its value, such as proximity to major roads, parks, or amenities.
-Condition: Appraisers also assess the physical condition of the property, its improvements, nearby structures, buildings, and the environmental issues affecting its value.
-Zoning Restrictions: This includes the property’s current zoning, restrictions, and potential for future development or changes to zoning laws.
-Comparable Properties: The appraiser will assess the sale prices of similar properties in the area to determine the fair market value of the appraised property.
Once the appraisal is completed, the appraiser produces a detailed report about the findings, including an estimate of the property’s market value. However, it’s crucial to remember that the government’s initial assessment may not reflect your property’s true market value.
Beyond this, in many states, the condemnor does not need to provide its full appraisal report to the landowner, making evaluation of that appraisal very difficult. It is therefore essential for a landowner to reach out to qualified attorneys to help evaluate the appraisal or offer.
An experienced eminent domain lawyer can help spot errors, issues, and deficiencies with a condemnor’s appraisal and assist a landowner with getting a better deal. While the government can take your land in certain circumstances, property owners need to know their rights and options to ensure they get fair compensation.
Can the Government Take a Small Part of Your Land Without Compensation?
Again, the 5th Amendment stipulates that the state or federal government may only exercise eminent domain if they fairly compensate the property owners. That includes any portion of your land.
Additionally, while some eminent domain cases may be the actual seizure of the entire property by the government, other seizures may be in the form of a regulatory taking. This occurs when the government restricts the owner’s use of their property so much that it constitutes a taking.
These aren’t the only types of government action that infringe on a private property owner’s rights. As a result, over the years, juries and judges have ruled or decided that the Fifth Amendment’s compensation requirement is not just about government seizures of real property.
This critical amendment also covers the seizure of all tangible and intangible property, including easements, trade secrets, personal property, and contract rights. Owners must be fairly compensated.
It can get quite complicated. This is one of many reasons why you must hire a competent attorney.
Can I Represent Myself in an Eminent Domain Case?
Property owners are allowed to represent themselves in court in eminent domain cases; however, these cases can be highly complicated and time-consuming, making it challenging for a layperson to navigate the process effectively.
Representing yourself can save you money in the short term but cost you more in terms of lost compensation and damages. Moreover, the government or public entity will likely have experienced lawyers representing their interests which could put your case at a significant disadvantage.
Working with an experienced eminent domain lawyer levels the playing field and significantly increases the likelihood of a fair outcome for your case. Experienced eminent domain attorneys bring a wealth of expertise to your case, including knowledge of laws and regulations, experience with similar cases, and familiarity with the legal process. They can also help negotiate with the government and advocate on your behalf in case of a condemnation hearing.
Even if the government can take your land in certain situations, having legal representation ensures your rights are protected and you receive just compensation for your property.
An Experienced Condemnation Lawyer Can Represent Your Rights
Can the government take your land? Yes, but property owners still have a right to just compensation for their property. At the law firm of Sever Walker Padgitt, LLP, we assist landowners throughout the United States to ensure they’re not taken advantage of by the government. If you believe your land may be in jeopardy, please call to speak with one of our eminent domain attorneys at 888-318-3761 today.
