June 30th, 2016 — By — In Articles
Glossary: Eminent Domain Terminology
If a government agency (or a utility or other private company acting with the government’s authority to use the power of eminent domain) is attempting to take your property, it is critical to make sure that you understand your rights under the law of eminent domain. For most people, this starts with familiarizing yourself with the basic terminology involved. To help you get started, we have prepared a glossary of some of the key terms.
Key Terms in Eminent Domain Law
1. Eminent Domain
“Eminent domain” (also referred to as “condemnation” or “appropriation” in some states) is the government’s power to take private property subject to payment of just compensation. Federal, state and local government agencies can exercise the power of eminent domain. In certain circumstances, government agencies can grant private companies the authority to exercise eminent domain as well.
2. Inverse Condemnation
Government agencies must follow certain procedures in order to exercise the power of eminent domain. When they fail to follow these procedures and condemn private property without payment of just compensation, property owners can seek to enforce their right to just compensation under the Fifth Amendment through an action for “inverse condemnation.”
3. Just Compensation
Under the U.S. Constitution and state laws, in order to condemn private property, the government must pay the property owner “just compensation.” However, determining what amount of compensation is “just” isn’t always easy, and property owners will often need to take legal action to enforce their right to just compensation.
4. Public Use
The government can only condemn private property and authorize the exercise of eminent domain for a “public purpose” or “public use.” Traditionally, this has meant for purposes such as widening roads, utility projects, building schools and other government buildings, and conservation. However, over the past decade, the definition of what constitutes a “public use” has widened substantially, to include, in some cases, private redevelopment projects and increased tax revenues.
While the government typically must pay just compensation before condemning private property, in certain circumstances state laws authorize a “quick-take” procedure which allows agencies to take private property prior to the final determination of just compensation. In most cases, the taking authority must pay its estimate of just compensation to the owner upon acquiring the property. The parties will then follow specific state procedures to determine the final award of compensation. This may include a bench trial before a judge or a hearing before impartial commissioners who will determine the amount of compensation. Or, in some jurisdictions, a jury will be empaneled to hear evidence and determine the amount of compensation due to the owner.
6. Regulatory Taking
Physically taking private property is not the only way that the government can deprive property owners of their rights. When a government agency enacts a zoning ordinance or other regulation that diminishes the economic value of a piece of property, this is known as a “regulatory taking.” Like physical takings, regulatory takings require payment of just compensation.
7. Restrictive Covenant
A “restrictive covenant” involves the government taking a “non-possessory” interest in private property. Restrictive covenants prevent landowners from making certain uses of their property, such as subdividing lots or constructing buildings above a certain height. A similar concept is an “easement,” which is a right to access (or even build on) a piece of land that remains the property of a private owner.
Additional Information on Eminent domain
Our website is full of resources for individuals and businesses threatened with the loss of their private property rights. For more information on the law of eminent domain and inverse condemnation, you can read:
- Calculating Just Compensation
- Eminent Domain vs. Inverse Condemnation: What’s the Difference?
- Property Owners’ Frequently Asked Questions about Eminent Domain
- Understanding Your Rights in Inverse Condemnation and Regulatory Takings Cases
- When Can Property Owners Challenge Eminent Domain?
- Can I Afford to Hire an Eminent Domain Attorney?
Speak With an Eminent Domain Lawyer at Owners’ Counsel of America
Owners’ Counsel of America (OCA) is a network of leading eminent domain lawyers throughout the United States. If the government is attempting to take your property, we encourage you to contact an OCA lawyer in your state for a free consultation. Locate your OCA lawyer online or call us at (877) 367-6963 to connect with an eminent domain lawyer today.