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Understanding Eminent Domain
Generally speaking, the property that you own is yours until you decide to dispose of it by selling or giving it away. However, sometimes a government project intended for the public good requires the appropriation of privately held property. The Fifth Amendment of the United States Constitution allows the government to take and use property under certain conditions according to the legal principle of eminent domain.
Eminent domain is difficult to understand because it seems to go against common sense. Here are some questions that often arise about it.
What Property Is Subject to Eminent Domain?
Eminent domain can be, and is perhaps most often, used by the government to seize physical property, such as land and buildings, for public use. For example, it has been used to clear the way for the construction of interstate highways and other public works projects. However, other tangible products may be subject to eminent domain, such as dirt, timber, water, and rock used in road construction. The airspace over an area of land is subject to eminent domain, as is intellectual property, such as copyrights and patents.
What Do Property Owners Get Out of It?
The Fifth Amendment is very clear that if a property is subject to eminent domain, the government must provide the owner just compensation in exchange. This must be provided before the property is seized. Just compensation could involve a monetary payment for the fair market value of the property.
However, the determination of just compensation isn’t necessarily that straightforward. For example, the government could seize and use the property only temporarily, returning it to the owner afterward. Temporarily invoking eminent domain doesn’t relieve the government of the responsibility to provide just compensation, but it can make the determination more difficult.
What Can the Property Be Used For?
The Fifth Amendment specifies that private property seized through eminent domain must be put to “public use.” Examples may include a new road, public utilities, a city park, etc. However, the definition of a public use isn’t very specifically defined in the Constitution. Over the years, the Supreme Court has applied the Fifth Amendment more broadly, making it easier for corporations to seize public land for research facilities and factories, which some consider legal abuse.
What if You Don’t Want To Give Up the Property?
The law requires that before seizure of property can occur, condemnation procedures must take place in court. These proceedings give the owner a chance to challenge the forced sale. Inverse condemnation is a remedy for when you do not receive just compensation for your property.