Difference between revisions of "Eminent domain"

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{{Copyright|Month=April 30, 2014|Reason= Sections include direct copies from another source.}}{{tnr}}'''Eminent domain''' is the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use. In some jurisdictions, the state delegates eminent domain power to certain public and private companies, typically utilities, such that they can bring eminent domain actions to run telephone, power, water or gas lines. In most countries, including the United States under the [[Bill of Rights, United States Constitution|Fifth Amendment to the Constitution]], the owner of any appropriated land is entitled to reasonable compensation, usually defined as the fair market value of the property. Proceedings to take land under eminent domain are typically referred to as "condemnation" proceedings.<ref>[http://www.merriam-webster.com/dictionary/eminent%20domain ''Merriam-Webster'', "Eminent domain", accessed March 30, 2014]</ref><ref name="el"/><ref name="col">[http://www.columbia.edu/cu/cssn/expansion/infosheets/eminentdomain.pdf ''Columbia.edu'', "What is eminent domain?", accessed March 30, 2014]</ref>
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{{tnr}}'''Eminent domain''' is the prerogative of a government to take private property, such as land, without the owners consent for public use with payment of reasonable compensation.<ref>[http://www.merriam-webster.com/dictionary/eminent%20domain ''Merriam-Webster'', "Eminent domain", accessed March 30, 2014]</ref><ref name="owners">[http://www.ownerscounsel.com/Property-Owners-FAQ.shtml ''Owner's Counsel of American'', "FAQs," accessed April 29, 2014]</ref> Reasonable compensation is defined in terms of fair market value of the property.<ref name="investo">[http://www.investopedia.com/terms/e/eminent-domain.asp ''Investopedia'', "Eminent domain," accessed April 29, 2014]</ref><ref name="owners"/> The government may exercise its right to eminent domain if the owner of the private property do not wish to sell it to the government.<ref>[http://www.eminentdomainlaw.net/power.php ''California Eminent Domain Law Group'', "What is eminent domain?" accessed April 29, 2014]</ref>
  
==Process==
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Common uses of eminent domain are for generally for the building of infrastructure, such as railroads, highways or other public works or development projects.<ref name="investo"/>  
Eminent domain law and legal procedures vary, sometimes significantly, between jurisdictions. Usually, when a unit of government wishes to acquire privately held land, the following steps (or a similar procedure) are followed:<ref name="el">[http://www.expertlaw.com/library/real_estate/eminent_domain.html ''Expert Law'', "Eminent Domain", accessed March 30, 2014]</ref>
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#The government attempts to negotiate the purchase of the property for fair value.
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==United States Constitution==
#If the owner does not wish to sell, the government files a court action to exercise eminent domain and serves or publishes notice of the hearing as required by law.
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::''See also: [[Bill of Rights, United States Constitution#Amendment V|Fifth Amendment]] and [[United States Constitution]]''
#A hearing is scheduled, at which the government must demonstrate that it engaged in good faith negotiations to purchase the property but that no agreement was reached. The government must also demonstrate that the taking of the property is for a public use, as defined by law. The property owner is given the opportunity to respond to the government's claims.
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#If the government is successful in its petition, proceedings are held to establish the fair market value of the property. Any payment to the owner is first used to satisfy any mortgages, liens and encumbrances on the property, with any remaining balance paid to the owner. The government obtains title.
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#If the government is not successful, or if the property owner is not satisfied with the outcome, either side may appeal the decision.
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==Takings==
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The [[Bill of Rights, United States Constitution#Amendment V|Fifth Amendment]] to the [[United States Constitution]] includes a provision which reads "nor shall private property be taken for public use, without just compensation."<ref>[http://www.archives.gov/exhibits/charters/constitution.html ''Archives.gov'', "Constitution of the United States," accessed April 30, 2014]</ref>
There are several types of takings which can occur through eminent domain:<ref name="el"/>
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*'''Complete Taking''' - In a complete taking, all of the property at issue is appropriated.
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==Process==
 
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The process of eminent domain generally varies among states and jurisdictions. Generally, the government must negotiate with the owner of the private property property a reasonable fair market value. If the owner of the private property does not wish to settle with the government and the government still wishes to purchase the property then the government will either: (1) file with the court an action to exercise their right of eminent domain or (2) post notice of the hearing, which is required by law. During the hearing, the government must prove that this private property will be for public use. If proven successfully, fair market value of the private property will be determined through further proceedings. Finally, any payment to the owner must be used to any debt the owners hold on the private property. The remainder of the payment would then go to the owner and the government would receive the title of the property in question.<ref name="el">[http://www.expertlaw.com/library/real_estate/eminent_domain.html ''Expert Law'', "Eminent Domain", accessed March 30, 2014]</ref><ref name="bier">[http://www.condemnation-law.com/eminent-domain ''Biersdorf & Associates'', "Eminent domain," accessed April 29, 2014]</ref>
*'''Partial Taking'' - If the taking is of part of a piece of property, such as the condemnation of a strip of land to expand a road, the owner should be compensated both for the value of the strip of land and for any effect the condemnation of that strip has on the value of the owner's remaining property.
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*'''Temporary Taking''' - Part or all of the property is appropriated for a limited period of time. The property owner retains title, is compensated for any losses associated with the taking and regains complete possession of the property at the conclusion of the taking. For example, it may be necessary to temporarily use a portion of an adjacent parcel of property to complete a construction or highway project.
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*'''Easments and Rights of Way''' - It is also possible to bring an eminent domain action to obtain an easement or right of way. For example, a utility company may obtain an easement over private land install and maintain power lines. The property owner remains free to use the property for any purpose which does interfere with the right of way or easement.
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==Fair Value==
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Fair value is usually considered to be the fair market value - that is, the highest price somebody would pay for the property, were it in the hands of a willing seller. The date upon which the value is assessed will vary, depending upon the governing law. If the parties do not agree on the value, they will typically utilize appraisers to assist in the negotiation process. If the case is litigated, both sides will ordinarily present expert testimony from appraisers as to the fair market value of the property.<ref name="el"/><ref name="col"/>
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==Just Compensation==
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Importantly, if the government does not prove their case that this private property will be for public use or if the private property owner has issue with the outcome or payment, both sides are able to appeal the decision rendered by the court.<ref name="el"/>
At times, fair value includes more than the price of an item of property or parcel of real estate. If a business is operating from the condemned real estate, the owner is ordinarily entitled to compensation for the loss or disruption of the business resulting from the condemnation. In a minority of jurisdictions, the owner may also be entitled to compensation for loss of "goodwill," the value of the business in excess of fair market value due to such factors as its location, reputation or good customer relations. If the business does not own the land, but leases the premises from which it operates, it would ordinarily be entitled to compensation for the value of its lease, for any fixtures it has installed in the premises and for any loss or diminishment of value in the business.<ref name="el"/><ref name="col"/>
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==Public Use==
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==Court decisions==
Ordinarily, a government can exercise eminent domain only if its taking will be for a "public use" - which may be expansively defined along the lines of public "safety, health, interest or convenience". The most common example of a "public use" is the taking of land to build or expand a public road or highway. Public use could also include the taking of land to build a school or municipal building, for a public park or to redevelop a "blighted" property or neighborhood.<ref name="el"/>
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::''See also: [[Kelo v. City of New London]]''
  
==Abuses of Eminent Domain==
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Recent court case decisions have rendered new uses of eminent domain towards accepting projects for not only public use but for public benefit. In the 2004 case, ''[[Kelo v. City of New London]]'', the [[Supreme Court of the United States]] set a precedent in the use of eminent domain and for property to be transferred to a private owner, not the government, for economic development purposes. The Supreme Court's decision cites that an economic development project "create jobs, increases tax and other city revenues and revitalizes a depressed or blighted area it qualifies as a public use."<ref name="col">[http://www.columbia.edu/cu/cssn/expansion/infosheets/eminentdomain.pdf ''Columbia.edu'', "What is eminent domain?", accessed March 30, 2014]</ref> With this decision, numerous states have passed specific legislation which guard the abuse of eminent domain for this purpose.
In recent decades, there has been growing concern about the manner in which some states and units of government exercise their power of eminent domain. Some governments appear inclined to exercise eminent domain for the benefit of developers or commercial interests, on the basis that anything that increases the value of a given tract of land is a sufficient public use. Critics respond that this is absurd, and that there are few properties, no matter how upscale, which could not be made more valuable if developed in a different manner. They also note that if a developer is unable to purchase the property on the open market, it is unlikely that the landowners will truly be offered the value of the property through condemnation proceedings. The governmental response to that point is that the law of eminent domain arose from the experience that some property owners are unwilling to negotiate a reasonable sale price and such unreasonableness should not provide a basis to extort an above-market price or to prevent the completion of a public project.<ref name="el"/>
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==See also==
 
==See also==
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* [http://www.law.cornell.edu/wex/eminent_domain ''Cornell Law School'', "Eminent domain"]
 
* [http://www.law.cornell.edu/wex/eminent_domain ''Cornell Law School'', "Eminent domain"]
 
* [http://www.ncsl.org/research/environment-and-natural-resources/eminent-domain-overview.aspx ''NCSL'', "Eminent Domain Overview"]
 
* [http://www.ncsl.org/research/environment-and-natural-resources/eminent-domain-overview.aspx ''NCSL'', "Eminent Domain Overview"]
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* [http://www.cbsnews.com/news/eminent-domain-being-abused/ ''CBS 60 Minutes'', "Eminent Domain: Being Abused?]
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* [http://www.nytimes.com/2014/01/12/business/in-richmond-california-a-long-shot-against-blight.html?_r=0 ''New York Times'', "Eminent Domain: A Long Shot Against Blight"]
  
 
==Additional reading==
 
==Additional reading==

Revision as of 13:26, 30 April 2014

Eminent domain is the prerogative of a government to take private property, such as land, without the owners consent for public use with payment of reasonable compensation.[1][2] Reasonable compensation is defined in terms of fair market value of the property.[3][2] The government may exercise its right to eminent domain if the owner of the private property do not wish to sell it to the government.[4]

Common uses of eminent domain are for generally for the building of infrastructure, such as railroads, highways or other public works or development projects.[3]

United States Constitution

See also: Fifth Amendment and United States Constitution

The Fifth Amendment to the United States Constitution includes a provision which reads "nor shall private property be taken for public use, without just compensation."[5]

Process

The process of eminent domain generally varies among states and jurisdictions. Generally, the government must negotiate with the owner of the private property property a reasonable fair market value. If the owner of the private property does not wish to settle with the government and the government still wishes to purchase the property then the government will either: (1) file with the court an action to exercise their right of eminent domain or (2) post notice of the hearing, which is required by law. During the hearing, the government must prove that this private property will be for public use. If proven successfully, fair market value of the private property will be determined through further proceedings. Finally, any payment to the owner must be used to any debt the owners hold on the private property. The remainder of the payment would then go to the owner and the government would receive the title of the property in question.[6][7]

Importantly, if the government does not prove their case that this private property will be for public use or if the private property owner has issue with the outcome or payment, both sides are able to appeal the decision rendered by the court.[6]

Court decisions

See also: Kelo v. City of New London

Recent court case decisions have rendered new uses of eminent domain towards accepting projects for not only public use but for public benefit. In the 2004 case, Kelo v. City of New London, the Supreme Court of the United States set a precedent in the use of eminent domain and for property to be transferred to a private owner, not the government, for economic development purposes. The Supreme Court's decision cites that an economic development project "create jobs, increases tax and other city revenues and revitalizes a depressed or blighted area it qualifies as a public use."[8] With this decision, numerous states have passed specific legislation which guard the abuse of eminent domain for this purpose.

See also

External links

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Additional reading

References