Eminent Domain and the Government's Right to Take Away Your Property

October 05, 2011

Property rights are one of the essential tenets of our society. According to one California eminent domain attorney, property owners are entitled to use their property how they see fit within the bounds of the law. However, there are instances where the government is entitled to infringe upon one's property to support the greater good of the community. This is called eminent domain.

Under the principle of eminent domain, it is the government's right to "take" private property for public use. When a "taking" occurs, a municipality must pay fair market value for the property to the owner. An example would be a city buying property from a group of parking lot owners to build a baseball stadium, or a state utility compensating a farm owner for the right to run power lines under his property.

There may be some debate over what constitutes a taking. Eminent domain does not always require a property owner to completely relinquish his or her property. Instead, a taking occurs whenever there is a drastic interference with the use and enjoyment of such property. This could be a severe restriction (where the entire property is transferred or unavailable) or a partial restriction (where only part of the property is used).

Determining fair market value is central to eminent domain, but it can become a contentious legal issue. Many property owners believe that eminent domain forces them to accept below market prices, especially at a time where it is less than advantageous to sell. Market demand affects real estate prices. When a market has no willing sellers, property values remain flat (or decline). In these climates, owners may forfeit opportunities to realize their investment when market conditions improve. As such, California law, for instance, allows several methods for valuation, as long as it is just and equitable under the circumstances.

Article provided by Campbell, Lauter & Murphy
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