© Copyright 2023 SEVER STOREY. All Rights Reserved.
Purchasers of land usually assume that when they take title to it, it will belong to them, undisturbed, forever. For this reason, many landowners are surprised when they learn that their government is trying to take their land to make way for a road or pipeline.
If this happens to you, it’s only natural for you to feel it’s wrong and to wonder how this could possibly be legal. Can the government take your land?
The truth is that under federal and state law, there are certain circumstances whereby the government has the right to take your land away from you. 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.
Does this mean the government can take your land without any restrictions?
Fortunately, limits do exist. The 5th Amendment to the United States Constitution1 states that no “private property be taken for public use, without just compensation.” This Amendment has been interpreted to mean that the government CAN take your land 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.2
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 can be involved in calculating the fair market value of a given property and the compensation a landowner deserves, including relocation expenses, lost business, damage to the remainder, zoning, and more.
Prior to initiating eminent domain proceedings, 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 in preparation of 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 on the property.
The condemnation appraiser should assess various factors to determine the value of your property, including:
-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.
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.
Eminent domain is legal, but property owners still have a right to just compensation for their property. At the law firm of Sever Storey Walker, 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.
What are the unique issues that face commercial property owners in condemnation that can make all the difference?LEARN MORE
Landowners forget this one thing when dealing with utility companies that want an easement across their land.LEARN MORE
What you need to know to be treated fairly by the condemning authority.LEARN MORE