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December 28th, 2015 — By — In Articles

When Can Property Owners Challenge Eminent Domain?

While state and federal government agencies have the power of eminent domain – to take private property for public use – that power is not unlimited.  Eminent domain power is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution and by individual state constitutions and laws.  If the government seeks to take your property, there are potential defenses an eminent domain attorney may employ to challenge the taking.  While certain defenses challenge the condemnation outright, others focus on ensuring that you receive just compensation for the taking of your property. In this article, we provide a brief overview of four of the most common defenses to condemnation:

  • The government lacks the authority to condemn your property
  • The government lacks a sufficient public purpose for condemnation
  • The government does not your property for the public project
  • The government has not offered just compensation for your property

Common Defenses to the Exercise of Eminent Domain

The Government Lacks the Authority Needed to Condemn Your Property

In order to condemn your property, the government agency seeking to exercise eminent domain must have the authority to do so. Government agencies cannot simply make a decision to condemn a private owner’s property and move forward. This authority may be granted by a statute that is either general in nature or enacted for a specific purpose.  Departments of transportation, public utilities, and the federal government generally have the power of eminent domain.

A landowner may be successful in challenging the authority to take private property in situations where the condemnor assumed it had been granted eminent domain authority when, in fact, it had not.  To defend against a taking, eminent domain lawyers may present evidence that a statute did not include a particular type of project, expressly omitted it or required certain steps to be followed – such as a 3/5 vote of the state legislature for approval to use eminent domain.

The Government Lacks a Sufficient Public Purpose for Condemnation

The power of eminent domain only allows condemnation of private property for a legitimate public purpose. While “public purpose” has been interpreted broadly, there may be defenses against the government’s exercise of eminent domain. If the government cannot justify its proposed condemnation with a valid public purpose, its actions may violate your constitutional rights.

Recently, local governments and redevelopment authorities have used the power of eminent domain to condemn private property on behalf of developers, to pave the way for new construction in areas designated as “blighted” by municipal authorities. The intended public purpose or benefit may be to increase tax revenues and ignite economic development for a struggling municipality or to replace or improve what some may consider to be a “blighted” or older community.   In some states, such a purpose has been expressly prohibited by statute or constitutional amendment and a public purpose challenge may be successful.

The Government Does Not Need to Condemn Your Property for a Public Project

Even if the government has established a valid public purpose, it may not condemn your property if the intended acquisition of your property is not “necessary” to the project. Under most state statutes, condemnors are only authorized to take enough private property to complete the intended project.  Some landowners have successfully defended their property and defeated a taking by arguing a lack of necessity.

In such cases, the landowner’s eminent domain attorney may have challenged the take on the basis that the owner’s land was simply not necessary for the project.  For this defense to be successful, the owner’s condemnation attorney must present evidence that the project could be constructed without the subject property and, as such, that land was not needed.  If the condemning agency identifies more property for condemnation than absolutely necessary, a defense of this nature may be successful to defeat the taking.

The Government Wants to Take Your Property Without Paying Just Compensation

Finally, if the government has the authority, follows the required procedures and the condemnation of your property is necessary to execute a true public purpose, obtaining just compensation may be your only option under the law.  If you feel that the government has not made a reasonable offer for your property, your eminent domain lawyer may be able to negotiate a fair settlement on your behalf.

In many cases, the condemnor’s appraiser only considers the value of the land appropriated not the damages the taking will have on your remaining property.   If the condemnor has not offered compensation for the reduction in value to your remaining property or to cure any negative impacts to your remaining property, an eminent domain attorney may help negotiate such compensation.  For a property owner facing eminent domain, it is important to understand how properties are valued in condemnation proceedings and what is compensable under the law.

Do You Have Questions? Contact an about Eminent Domain Attorney at Owners’ Counsel of America

The defenses available to you will depend upon the unique facts and circumstances involved in your case. If you are facing condemnation and want to learn more about protecting your property rights, contact an eminent domain attorney with Owners’ Counsel of America.