What Is Eminent Domain?

What is eminent domain?

Eminent domain is the power of the government to take private property belonging to its citizens. It can also be called "condemnation" or, in some states, "expropriation."

Can eminent domain be used to take my property and give it to another private party?

The federal and state constitutions all say that property may only be condemned for "public use." For many years, governments applied that term to mean that property could be taken for things like roads, schools, and public buildings.

Then, courts allowed eminent domain to be used for private corporations that had public utilities, like electric companies and railroads. Starting in the 1950s, eminent domain became increasingly used for "slum clearance." Once an area was declared to be a slum or blighted, it could be cleared using eminent domain, and the property could often then be transferred to another private party. Increasingly, over the second half of the twentieth century, local governments have tried to use eminent domain in order to transfer land to other private parties. Whether and under what circumstances courts will allow this abuse of eminent domain is a matter of state law. Several states permit condemnations for economic development, but some do not. You will have to research and/or consult with a local lawyer to determine if the particular condemnation in your situation is legal. It may violate your state constitution. Also, sometimes agencies fail to comply with state statutes or required procedures, and such failures will also make the condemnation illegal. But even if you happen not to ultimately prevail in court, however, you still have morality and justice on your side. The purpose of the Castle Coalition is to give people the tools to prevent condemnations for the benefit of private parties without having to resort to legal proceedings.

I've heard rumblings about my area being condemned, but I don't know if it's true. How can I find out?

Try some of the strategies In the "Survival Guide: Get Information" section. This is not something to ignore. Find out at soon as possible what is going on. Often the first step before condemnation is a redevelopment plan. Get a copy of the plan and look to see if your property is included. Get copies of all documents; talk to your local officials and agencies. Take notes of the date and each person you speak to in case you need to refer to this information later.

There is a hearing coming up about designating my area as blighted. What can I do to try to stop the designation?

Designating an area as blighted usually is the first step before using eminent domain. Once the area has been designated, most states say that anything within that area can be condemned for the supposed public purpose of eliminating blight. It is therefore extremely dangerous. The members of the agency may tell you that there are no plans to use eminent domain "at this time." That's no protection. In some states, blight designations last for a certain number of years, and in many they last forever.

Usually, there is a report done by a consultant that explains the supposed reasons supporting the blight designation. That report is then given to the agency that will vote on whether to designate the area as blighted. It is possible that in some states or localities, there will not be such a report, but there should be one in the majority of situations. Get a copy of the report and go through it carefully. Identify everything you think is wrong and try to bring information that supports your position to the hearing. If the properties look nice, bring pictures. If you are a business, do a count of the number of people who visit your establishment in a day or week or check your annual sales taxes. As with all opposition to eminent domain, it is better to have a group of people all explaining why the area is not blighted than to have only one. Also, this is a good time to let the local government know that whatever they have planned will not simply slip by. Bring a crowd, call the newspapers.

I've been told that if I don't sell my property voluntarily, the developer will take it anyway, and I'll just get less money. Can they do that?

Compensation laws and procedures vary significantly from state to state, so you must contact a lawyer in your state to get the real answer to this question. Generally speaking, if an agency condemns your property, you are entitled to "just compensation." In some states, that means just the value of your land and building. In others, it may include some of your business value, business fixtures, goodwill, or other items. You must find out from a local attorney what is included.

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