Barron & Adler LLP: What to Do If the Government Moves to Take Your Property Under Eminent Domain

Eminent domain is the process by which the federal government may acquire your personal property for public use. While their power to do so is codified in the United States Constitution, there are a number of defenses and strategies to ensure that your property is protected from an overreaching eminent domain claim.

Both the Fifth Amendment and the Fourteenth Amendment of the United States Constitution offer some guidance regarding eminent domain. The Fifth Amendment expressly prohibits the government from taking personal property for private use without just and adequate compensation. Similarly, the Fourteenth Amendment applies this provision to state and local governments, guaranteeing that the government does not have the ability to take any land it wants. 

Notably, a ‘taking’ of public property does differ from a ‘seizure’ of property - generally, a seizure of property occurs when the landowner has failed to abide by certain regulations, such as pay their taxes or follow ordinances regarding the property’s use. When the government moves for a taking under eminent domain, however, the government must be prepared to offer adequate compensation for the individual’s property under the law.

A taking of property can occur not just when the government moves to acquire land, but rather when the government makes changes to its zoning ordinances that impact the property’s ability to perform as its owner intended. A taking can occur in one of three ways:

• A complete taking, such as when the entire property is purchased
• A partial taking, such as if only a portion of the land is needed
• A temporary taking, if the property is needed only for a specific time

In other contexts, the government is required to offer the property’s owner some compensation.

There are a variety of defenses and strategies you can employ if the government moves to take your property under the claim of eminent domain. First of all, you can assert that the government lacks standing to do so, either by claiming that they lack the authority, sufficient public purpose, or necessity, or by claiming that the compensation being offered is not substantial enough. In order to make these claims, you must research whether there are particular state or federal agencies that have absolute power to make eminent domain claims in your county or state. Notably, property owners should be acutely aware of recent circumventions of law that allow private developers to stake claims on land with the justification that doing so will increase local tax revenues. These types of practices have been prohibited and amount to a solid defense against an eminent domain claim.

Similarly, understanding that an eminent domain claim does put you in a position to negotiate is critical if you wish to come out on the winning side. When the government initially alerts you of their intentions via mail, take a close look at their property appraisal report. Make sure each detail outlined in the appraisal report is accurate, as that will make a big difference when it’s time to negotiate the offer.

Often, a property owner is in a position to negotiate when the government is also seeking access from neighboring property owners. Banding together and seeking proper legal assistance is crucial if you wish to have a favorable outcome.