Understanding Your Property Rights
We Wrestle the Government for You
Public interest versus individual rights provides an opportunity for ongoing debate in legal circles around the United States. This is especially evident when it comes to eminent domain cases.
Perhaps you may wonder: What is eminent domain? How does it work? And if you are facing the threat that the federal government, or your state or local government will exercise its privilege of eminent domain in a manner detrimental to you, what can you do? The following information will answer these and other questions around the theory and application of eminent domain.
What is Eminent Domain?
Put simply, eminent domain can be defined as "the government's power to take private land for public use under certain circumstances." The "Takings Clause" of the 5th Amendment to the United States Constitution prohibits the federal government from exercise its right of eminent domain "without just compensation" to the property owner. The 14th Amendment extends this prohibition to state and local governments as well.
There are three types of "takings," or situations in which the government acquires private land for public use:
- Complete takings occur when the entire property is purchased from the owner
- Partial takings are when only a portion of the property is needed for the government's purpose
- Temporary takings occur when the government acquires a piece of property only for a specific period of time
There is also the possibility of the government obtaining an easement, in which the owner of the property retains his real estate but must not interfere with right of way or easement with regards to the public interest (such as the installation and maintenance of power lines).
Perhaps the most common and visible application of eminent domain is when the government purchases a piece of property for road construction purposes. It is also becoming increasingly common for governments to transfer acquired real estate to private developers, who claim that their projects (such as high-end residential buildings, retail stores, restaurants, malls, etc.) will create public benefits.
How Eminent Domain Works
Once the government has identified a piece of real estate as a necessary component for a public project's successful completion, government representatives will typically follow the eminent domain process outlined below:
- First, the government will attempt to negotiate fair value for the purchase of the property from its owner.
- If the owner is unwilling to sell the property at the government's proposed price, then the government will file a court action to exercise its power of public domain. The property owner will accordingly be served notice, or the notice of hearing will otherwise be published as required by law.
- At the hearing, the government must demonstrate the existence of two vital factors: that the government negotiated with the owner in good faith, and that the property in question will be taken for "public use." The property owner will also have a chance to respond to the government's claims.
- If the government wins its case, then proceedings are held to calculate the fair market value of the property. The owner receives the amount that is decided upon, minus any mortgages, liens, or encumbrances upon the property.
- Both the government and the owner have the right to appeal the court's initial decision from the hearing.
There are many considerations that could come into play in an eminent domain case. For instance, what is "fair value" for a piece of property? Did the government truly offer "just compensation?" And will the land in question truly be used for the public benefit?
If you need assistance in confronting an eminent domain situation, then East Lake Law Firm is your best option for a successful legal defense. We offer eminent domain services for the St. Lucie County, Fort Pierce, and Okeechobee areas. Jordi Zaragoza, PA, is an expert in the realm of eminent domain, with a proven track record of success. If you'd like to learn more, reach out to us today.