Eminent Domain is the legal power to take private property for public use by a state, municipality or private person or corporation that is authorized to act on behalf of the public character, following the receipt of payment or other just compensation to the property’s owner. According to the Fifth Amendment to the U.S. Constitution, the government is required to provide property owners with just compensation for any private property that is seized for public or government use.
Different Property Rights that are Subject to Eminent Domain:
- Air Rights
- Water Rights
- Land Rights
The seizure of private property is completed by the government through condemnation proceedings. During the proceedings, the property owner is provided with the right of due process.
In order to exercise the power of eminent domain, the government must meet certain requirements. They must prove that the four elements as specified in the Fifth Amendment are present in the situation:
- Private Property
- Must Be Seized
- For Public Use
- With Just Compensation
The legal complications come in the interpretation of these four elements. They have, in the past, been interpreted broadly.
The first element is the requirement that the property being seized is private property. This includes land, fixtures, leases, options, stocks, etc.
The second element is in reference to the seizure of physical property or a portion of physical property. This includes “taking” of property as a result of reducing its value. Property value reductions can occur as a result of: accessibility issues, noise, etc.
This is the third element. Public use is the requirement that the property being seized is used after seizure to benefit the public instead of a limited number of specific individuals.
The fourth and final element mandates that the amount of the compensation provided for the property being seized or decreased in value must be fair to the public and the private property owner.
Just compensation is a frequent subject of litigation as there is no specific formula in place to determine what is “just” compensation.
If you are involved in an eminent domain issue, contact an experienced southern California real estate attorney at The Law Office of Retz & Aldover LLP. Condemning agencies will have experienced eminent domain professionals on their side and you should, too.