What is Eminent Domain?

Eminent domain is the power of the government to take private property belonging to its citizens. It can also be called “condemnation” or, in some states, “expropriation.” 

What does the 5th Amendment say?

The 5th Amendment to the U.S. Constitution states, “…[N]or shall private property be taken for public use, without just compensation.”

What does the 5th Amendment say?

The 5th Amendment to the U.S. Constitution states, “…[N]or shall private property be taken for public use, without just compensation.”

Can eminent domain be used to take my property and give it to another private party?

The federal and state constitutions all say that property may only be condemned for “public use.” For many years, governments applied that term to mean that property could be taken for things like roads, schools, and public buildings.

Then, courts allowed eminent domain to be used for private corporations that had public utilities, like electric companies and railroads. Starting in the 1950s, eminent domain became increasingly used for “slum clearance.” Once an area was declared to be a slum or blighted, it could be cleared using eminent domain, and the property could often then be transferred to another private party. Increasingly, over the second half of the twentieth century, local governments have tried to use eminent domain in order to transfer land to other private parties. Whether and under what circumstances courts will allow this abuse of eminent domain is a matter of state law. Several states permit condemnations for economic development, but some do not. You will have to research and/or consult with a local lawyer to determine if the particular condemnation in your situation is legal. It may violate your state constitution. Also, sometimes agencies fail to comply with state statutes or required procedures, and such failures will also make the condemnation illegal. But even if you happen not to ultimately prevail in court, however, you still have morality and justice on your side. The purpose of this resource is to give people the tools to prevent condemnations for the benefit of private parties without having to resort to legal proceedings.

I’ve heard rumblings about my area being condemned, but I don’t know if it’s true. How can I find out?

This is not something to ignore. Find out at soon as possible what is going on. Often the first step before condemnation is a redevelopment plan. Get a copy of the plan and look to see if your property is included. Get copies of all documents; talk to your local officials and agencies. Take notes of the date and each person you speak to in case you need to refer to this information later.  Visit X and fill out the form to have an IJ attorney review your potential case.

Susette Kelo lost her land, but her home has become a national symbol for the fight against eminent domain abuse.
Opening the Floodgates: Eminent Domain Abuse in the Post-Kelo World
Joy and Carl Gamble made the first wave in a sea change of the use of eminent domain throughout the country.
There is a hearing coming up about designating my area as blighted. What can I do to try to stop the designation?

Designating an area as “blighted” usually is the first step before using eminent domain. Once the area has been designated, most states say that anything within that area can be condemned for the supposed public purpose of eliminating blight. It is therefore extremely dangerous. The members of the agency may tell you that there are no plans to use eminent domain “at this time.” That’s no protection. In some states, blight designations last for a certain number of years, and in many they last forever.

Usually, there is a report done by a consultant that explains the supposed reasons supporting the blight designation. That report is then given to the agency that will vote on whether to designate the area as blighted. It is possible that in some states or localities, there will not be such a report, but there should be one in the majority of situations. Get a copy of the report and go through it carefully. Identify everything you think is wrong and try to bring information that supports your position to the hearing. If the properties look nice, bring pictures. If you are a business, do a count of the number of people who visit your establishment in a day or week or check your annual sales taxes. As with all opposition to eminent domain, it is better to have a group of people all explaining why the area is not blighted than to have only one. Also, this is a good time to let the local government know that whatever they have planned will not simply slip by. Bring a crowd, call the newspapers.

I’ve been told that if I don’t sell my property voluntarily, the developer will take it anyway, and I’ll just get less money. Can they do that?

Compensation laws and procedures vary significantly from state to state, so you must contact a lawyer in your state to get the real answer to this question. Generally speaking, if an agency condemns your property, you are entitled to “just compensation.” In some states, that means just the value of your land and building. In others, it may include some of your business value, business fixtures, goodwill, or other items. You must find out from a local attorney what is included.

Whether the “voluntary” sale would be more or less money than what would happen at a condemnation depends on many factors. It is possible that the developer will offer you more at the beginning than the initial appraisal. On the other hand, it is possible that in a condemnation proceeding, you can show that your property is worth more than the supposed voluntary sale price or the government’s appraisal. You will need to get a sense of what your property is worth in order to figure out if you are being offered an appropriate amount.

But most important, many home and business owners simply do not want to sell their property. They are happy where they are and wish to remain. This resource is aimed at those individuals who cherish their property and want to fight eminent domain abuse. Your home (or business) is truly your castle and the government should not be allowed to take it from you to give to another private party for their economic gain.

If someone says to you that the developer (not the government) may take your property, write down exactly what was said, who said it, and when. Usually, private parties do not have the power to condemn property, so this statement may be useful evidence in the future. You or a lawyer will have to research this question very carefully.

I think I need a lawyer. Where can I find one?

You want to try to find a lawyer who knows about eminent domain. One good source is www.ownerscounsel.com, an association of lawyers that specialize in eminent domain and regularly represent owners in condemnation cases. There is one member per state, so if the lawyer for your state has a conflict or is not close enough, he or she may be able to refer you to someone else. We may also know other lawyers in your state. You can also look on www.martindale.com or www.findlaw.com for lawyers in your area who specialize in eminent domain. Assuming that you want to prevent the condemnation entirely (rather than seek greater compensation), make sure when you talk to the lawyer that the person understands and sympathizes with the fact that you want to defeat the condemnation. Due to local political pressure and concerns about compensation, many lawyers are not willing to do this. It is very important to retain a lawyer who understands and sympathizes with your commitment to hold on to your property.

How can I get IJ to take my case?

The Institute for Justice is a nonprofit, public interest law firm located in Washington, DC. It represents people whose rights are being violated by government, and one of its main specialties is representing people whose property is being condemned for the benefit of another private party. It does not charge for legal services. However, it is contacted by 50-100 people per year who want help with an eminent domain case. Of these, it can take at most three to four per year. Whether it can take your case will depend on your particular facts, the procedural posture of your case, and the current litigation schedule. To find another pro bono attorney, contact your state bar association and/or a local law school. Also, keep trying to defeat the project and condemnation in other ways.

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Is your local, state, or federal government currently attempting to seize your property through eminent domain?
If IJ doesn’t take my case, can I receive financial assistance to pursue my case myself?

Unfortunately, the Institute for Justice cannot fund outside lawsuits. It must use its resources for only those cases in which it is directly involved. There may be local or regional legal organizations in your area that could assist and some lawyers may be willing to help on a pro bono or reduced fee basis. A good idea is to organize a fundraiser or other event with those members of your community who will affected by the proposed eminent domain.

The government says they can come on to my property and look around, even if I don’t want them to and even though I still own the property. Is that true?

Again, this is a question of state law. Usually, but not always, the government can hire an appraiser to appraise your land, and that person will be able to come onto your property. However, in some situations, such as where no condemnation power exists, you may be able to prevent an appraiser from entering your property. You will need to do research or contact a local lawyer to find the answer to this question.

They’re trying to take my property, but it has a lot of historical significance. Can I save it because it’s a landmark?

Historical landmarking can sometimes protect a property from condemnation. Be aware that if your property is designated as a landmark, you will be sharply limited in what changes and improvements you can make to the property, and there may be limits on future use of it. You should look into your state’s laws on historical landmarks. Some property owners facing eminent domain have found a lot of support and advice in the historical landmarks agency. Others have found it less helpful. However, getting the support of the historical landmarks agency or of local history professors or others who know about your property’s historical significance can be very helpful in arguing against the condemnation of your property. This is an avenue worth pursuing.

What is the history of eminent domain?

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