Can You Refuse Eminent Domain?
Technically, a property owner cannot refuse eminent domain because the Fifth Amendment to the U.S. Constitution allows the government to legally take private property for public use as long as it pays ”just compensation” for it. But there are ways to challenge an eminent domain claim, with some more likely to succeed than others.
Rhonda Fisher, a licensed real estate broker and eminent domain expert, said challenging eminent domain can be tricky.
“Theoretically, it’s possible for an eminent domain lawyer to block a government’s condemnation. But you would have to prove the reasons that the government is taking the property don’t meet the requirements for public necessity or public use,” she said.
What Steps Can You Take to Fight Eminent Domain?
The first step in fighting eminent domain is to speak with a real estate attorney who has experience with eminent domain. Some property owners may choose to fight eminent domain on their own, but it’s not recommended.
“Real estate can be very complex and eminent domain is one of those areas. I would highly suggest that any owner receiving a notice of intent to take the property get in touch with a qualified attorney. There is a time to respond, and the complexities of the law may change depending on where a person lives,” Fisher said.
Steps to Fight Eminent Domain
- If you get a letter of intent from a government entity, determine why or for what public use the government is taking your property.
- If the government intends to take your property for public use, contact an attorney to help you understand your rights.
- If your attorney doesn’t have a team of real estate professionals, such as a licensed real estate broker or property appraiser, hire your own. They can help make a strong case for just compensation.
- Don’t negotiate or speak directly with the government. Have your attorney deal with the government and negotiate any settlement offers.
- If you don’t agree with the government’s assessment of your property’s value or settlement offer, talk to your attorney about contesting it in court.
Eminent domain cases often involve negotiation for the value of the property. If the government and property owner cannot agree on the value, the case may go to a jury trial.
If you have a case, your attorney will advise you on the next steps of the process. This may involve proving the government doesn’t have just cause to take your property or that it hasn’t offered you fair value for your property.
Common Defenses Against Eminent Domain
Common defenses against eminent domain include:
- The government lacks a justified public use for eminent domain.
- It doesn’t need to condemn the property.
- It hasn’t offered you a fair settlement amount for your property.
The government uses eminent domain to facilitate projects intended for the greater good. Historically, this has been for expanding water supplies, constructing public buildings, facilitating transportation or establishing public parks. This takes years of planning.
“Typically, the government is going to have done its homework in their taking of the property. For example, if it’s for a road or to expand a highway, those plans have been well thought out. So, proving the government doesn’t have a just use is difficult,” said Fisher.
Most property owners don’t fight eminent domain. But many disputes arise when the government and property owner disagree on the value of the property. Rarely, instances arise where the government takes private property without paying just compensation. This is called inverse condemnation. Property owners have a right to sue to get just compensation.
“Everyone thinks they know what something is worth. Value and what you are compensated aren’t always the same. The government has a very different view of value versus how an owner may view a property that’s been in their family for 10 generations,” Fisher said.
How Can an Eminent Domain Attorney Help?
A lawyer experienced in real estate law and eminent domain can help property owners prepare their case to fight eminent domain, including assembling a team with a licensed real estate broker, licensed property appraiser and other experts to help value the property.
“An attorney can help a property owner understand their rights, but they can also assist in maximizing compensation,” Fisher said. “A lawyer is going to be an ally of your choosing, and they will help you determine what the claim is worth both before and after the taking of the property. Because there is value over your lifetime of ownership of the property.”
In some cases, an attorney may help property owners get thousands of dollars more in compensation than the government initially offered. For example, Fisher has worked with an attorney and appraiser to get hundreds of thousands of dollars above what the government initially offered on a commercial property condemnation.
It’s in the best interest of the property owner to hire an experienced eminent domain lawyer. Not only are property owners entitled to just compensation, but the government must reimburse them for attorney’s fees at the conclusion of the case.
Please seek the advice of a qualified professional before making decisions about your health or finances.
FAQs
Property owners can fight eminent domain by proving the government isn't taking the property for a proper public use or by proving it hasn't offered the just value of the property. Property owners can hire an eminent domain lawyer who works with an experienced real estate broker to make a case.
How do you argue against eminent domain? ›
Eminent Domain Challenges: Property owners have the right to challenge government takings of their property through eminent domain. They can dispute the necessity, public purpose, and the amount of just compensation offered.
Has anyone won an eminent domain case? ›
With help from the Eminent Domain Abuse Survival Guide and IJ's own Lee McGrath in Minnesota, the Hollers fought an uphill battle and won their fight to keep their property. The county acquiesced that the library could be built without taking the Holler's property.
How do you determine just compensation from eminent domain? ›
In those cases, just compensation is determined not only by the value of the part taken, but also by the damage to the remaining property. Such damages are called “severance damages,” i.e., damages caused by severance of the remainder from the part taken.
Can eminent domain reversed? ›
Much depends on the level of proof, how long ago the taking occurred, who owns the land now and other factors. Further, reversing an eminent domain taking may require specific action by a legislative body. An example that illustrates this recently occurred in California. See Washington Post report here.
Is eminent domain negotiable? ›
You can negotiate with the government. Typically, after the government agency has given the initial offer, you can try to negotiate a higher amount directly with the government official. However, once a complaint has been filed and a lawsuit has commenced, the informal negotiation period has ended.
How do you restrict eminent domain? ›
Prop. 99 is a careful and narrow restriction of the use of eminent domain. It focuses only on homes taken and transferred to private uses, and allows for appropriate exemptions to protect public health and safety, and for other legitimate purposes.
Are eminent domain cases hard to win? ›
You should not be afraid of eminent domain litigation. The vast majority of these cases eventually settle, and this process is usually the way to obtain maximum compensation for your property. The reality is that the vast majority of eminent domain cases settle without going to a final trial.
What is an example of eminent domain gone wrong? ›
In the early 2000s, a real estate company in Hurst, Texas expanded its private mall to over 127 homes. The city used eminent domain to remove the homeowners, but a handful of them resisted the offers and filed lawsuits. The judge overruled their claims and forced them off of their land.
Why is eminent domain not beneficial? ›
It can lead to the displacement of communities and can reduce competition in local markets. It can also result in unfair compensation, as property values may not accurately reflect the true value of a property. Additionally, governments may abuse eminent domain by seizing private land for private use.
The Eminent Domain Trial
Anyone with an interest in the property and the agency will have the opportunity to present evidence of value, and the jury will determine the property's fair market value. In cases where the parties choose not to have a jury, the judge will decide the property's fair market value.
What is the fair market value for eminent domain? ›
Fair market value is an objective test to be determined by the jury. Any unique value or special affection you have for the property is not taken into consideration. The value is usually determined by real estate appraisers, although appraisers may disagree in their opinions of value.
What is the first step of eminent domain? ›
Before a government agency can commence an eminent domain proceeding in court, it must adopt a formal resolution to acquire the property. The formal resolution to acquire property is known as a “resolution of necessity.” The resolution of necessity must be adopted at a public hearing.
How do you get past eminent domain? ›
Property owners can fight eminent domain by proving the government isn't taking the property for a proper public use or by proving it hasn't offered the just value of the property. Property owners can hire an eminent domain lawyer who works with an experienced real estate broker to make a case.
How do you stop eminent domain abuse? ›
Seek legal counsel to ensure you are being treated fairly and offered just compensation. Community Engagement: Building community awareness and support is crucial. Form or join local organizations that are dedicated to protecting property rights and preventing eminent domain abuse.
What are the three requirements for eminent domain? ›
The eminent domain power is subjected to certain constitutional limits such as:
- The property acquired must be taken for a “public use;”
- The state must pay “just compensation” in exchange for the property;
- No person must be deprived of his/her property without due process of law.
Eminent domain abuse occurs when the government or its entities seize private property for purposes other than genuine public use or fail to provide fair compensation to the property owner.
Is it hard to win eminent domain cases? ›
You should not be afraid of eminent domain litigation. The vast majority of these cases eventually settle, and this process is usually the way to obtain maximum compensation for your property. The reality is that the vast majority of eminent domain cases settle without going to a final trial.
Is eminent domain justifiable? ›
Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose. The Kelo decision significantly broadened the government's takings power.
How is eminent domain unconstitutional? ›
However, the Fifth Amendment to the U.S. Constitution stipulates: “nor shall private property be taken for public use, without just compensation.” Thus, whenever the United States acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair ...
