Governments often take property ownership and cite the power of eminent domain as justification. For those who do not understand the government’s right to take land from private landowners, eminent domain may seem confusing or unfair.
The right of the federal government to seize property via eminent domain stems from the Fifth Amendment of the the Constitution, and the Fourteenth Amendment guarantees that same right to state governments. There are, however, select instances in which a landowner can successfully stop an eminent domain action by the government.
What Is Eminent Domain?
Eminent domain is the right of the government to seize ownership of private property and set it for public use. The government does not need the consent of the property owner to do this and can acquire the land via an eminent domain lawsuit. However, when the government exercises its power of eminent domain, it may not do so without providing “just compensation” to the landowner.
With all eminent domain lawsuits, the government may take the land, but they are restricted to what they use it for. All land seized through, or under threat of, eminent domain must be put to “public use.” Typical “public uses” include roads, government buildings, schools, airports, and energy transmission.
In most, but not all, cases, the property owner will not be able to stop the government from acquiring the property at the eminent domain phase if the land is ultimately to be put to a “public use.” Though there certainly exists situations where landowners can fight, or stop, a taking, most of the time the argument with the government isn’t over the state’s right to take but over what the state must pay.
What Gives the Government the Right to Take Property?
Though the seizure of property for public use may seem unfair and drastic, the right to take private land comes from the Fifth Amendment of the Constitution. The Fifth Amendment states:
“…nor shall private property be taken for public use, without just compensation.”
As interpreted, this clause implies the authority of the government to seize land for a “public use.”
What Is Considered “Just Compensation”?
The government can take a landowner’s property, but they also must pay the landowner for this taking. And they can’t just pay compensation; they must pay just compensation–meaning the government must make the landowner whole for what has been taken. For landowners, this can often mean compensation well in excess of what is offered by the government. A landowner has the right to reject a compensation offer and fight for more compensation at eminent domain if they wish.
It is pivotal then for a landowner to prepare themselves for this fight and learn what is compensable and what is not compensable. For example, generally a landowner cannot recover compensation for the installation of a median in front of the property, but a landowner generally may recover compensation for the closure or relocation of an access point on the property. This is just one example of how certain components of an acquisition may be recoverable and others may not. A landowner should contact an experienced lawyer to figure out how to properly maximize compensation recovery.
Is There Any Way to Stop the Seizure of Land?
In most cases, there is very little a property owner can do to stop the government from taking land. However, courts do have the power to review individual cases if they are contested. To win a case, a lawyer has to prove the government isn’t using the acquired land for public use or that the community does not need the land for public use.
Lawyers could also try to prove that the property meets certain rules and requirements that make it immune to eminent domain.
How Does the Government Exercise Eminent Domain?
The government, or authorized condemnor, exercises eminent domain through the courts. First, prior to initiating eminent domain, a condemnor will generally issue an offer of compensation to the landowner in order to resolve the matter without litigation. A landowner is under no compulsion or requirement to either accept that offer or even negotiate with the condemnor. As soon as a landowner receives this pre-condemnation offer, they should contact an attorney.
Second, if the landowner and the condemnor cannot strike a deal for the land, the condemnor will then file an eminent domain or “condemnation” lawsuit–generally the suit is filed in the county where the property is located. The landowner will have to be served this lawsuit via process server. Once a lawsuit is filed, a landowner should definitely seek counsel. Depending on the state, there are certain filing requirements and objections that need to be filed within a given time frame in order to maintain the right to get full “just compensation.” For example, in Georgia, if a landowner doesn’t file a Notice of Appeal within thirty (30) days of being served their condemnation lawsuit, they lose the right to challenge just compensation.
Third, once the lawsuit is filed, there is likely to be a “quick take” procedure–depending on the state–which will allow the government or condemnor to take possession of the property before final just compensation is determined. Each state has its own procedures for this quick take authority, and not every condemnor can exercise “quick take.” Generally, “quick take” procedures allow for immediate possession after “preliminary compensation” is determined and deposited with the court. A landowner should consult with an attorney to see if they live in a “quick take” state.
Quick take or not, the final stage of the eminent domain process is a jury trial over just compensation. If requested, a landowner is entitled to a jury trial over just compensation. At this stage of the process, generally, the land has already transferred and the only remaining issue is money owed to the landowner. At this jury trial, both sides may present their evidence as to compensation and a jury will render a verdict on that amount.
Though condemnation procedure is generally similar across states, there are intricacies and nuances of each state’s legal framework that could leave you flat footed if you don’t know them. Hiring an experienced lawyer like the ones at Sever Walker Padgitt can help preserve your right to just compensation.
How Do I Know the Government Wants My Land?
One of the most common questions our firm receives is, “How do I know the government wants my land for a project?” and often, finding the answer to this question is illusive for landowners. Often, landowners become familiar with a project affecting their property through general news regarding a road project, a public meeting, and/or a preliminary notice from the government. Sometimes, landowners aren’t even aware that their land is needed until they receive an offer for their land. There is no uniform standard for notifying landowners of the existence of road projects that may affect their property, so often a landowner has to do their own due diligence. Here are some options to learn if your property is impacted by a road project:
- Contact an eminent domain attorney
- Contact the DOT
- Search the DOT’s website for road plans
- Look for survey markers/posts on your property
- Maintain google news alerts for the road project that you believe will affect your property
Which Key Cases Determined Eminent Domain Laws?
A few landmark cases have played a significant role in defining clear rules regarding the taking of property.
Kohl v. United States (1875)
In this case, the city of Cincinnati used eminent domain to take land for a new post office. The land owners contested the action, but the Supreme Court confirmed that the federal government has the right to claim land for necessary public use as long as it provides compensation.
The decision strengthened the government’s ability to seize land for public use even when landowners don’t cooperate or comply.
United States v. Gettysburg Electric Railroad Company (1896)
In this case, the Gettysburg Electric Railroad Company contested Congress’s decision to preserve the sites of the Gettysburg Civil War battlefields. The railroad company stood to lose part of its railroad and land in the proposed area. The Supreme Court ruled that because the land held cultural and historical significance, the government had the power to claim and protect it.
This reinforced the government’s power to take land, especially in cases where the government wanted to preserve something of cultural or environmental significance.
Kelo v. City of New London (2005)
In this case, the government cited eminent domain and took land to build a private development. The court decided that since the development helped the community through economic development, it truly was taken for public use and was, therefore, legal.
This case showed that as long as a government can prove the land taken is used for any public purpose, they have the right to claim it. This case resulted in many states (Alabama, Georgia, Idaho, Indiana, Kentucky, Michigan, Ohio, South Dakota, Texas, Utah, West Virginia, and Wisconsin) passing laws that forbid the government from taking land that will then be used for economic development.
Find the Best Legal Representation Immediately
Whenever the government needs your land, hiring an experienced law team is best. They can ensure your rights are protected and you receive fair compensation.
Sever Walker Padgitt has a team of legal experts who specialize in eminent domain cases. With over forty years of legal experience and thousands of eminent domain cases under their belts, the team is ready to hold the government accountable and get clients what they are owed.
To get the compensation and representation you deserve, reach out to Sever Walker Padgitt. Call us today or fill out our form and get the process started.
