Law Articles - What is Eminent Domain Law?


by Robert Bell - Date: 2009-12-09 - Word Count: 962 Share This!

Eminent Domain Law is a statute or regulation of a governing body that indicates the power that such a body has over all property within the physical boundaries in its jurisdiction, and its ability to seize property for use by the public or the governing body. More plainly, this means that if the government wants to appropriate someone's private property for public use, say to build a new highway through, they may use eminent domain to make the property owner sell it to them, albeit for current market value.

Usually a government body is only allowed to enact eminent domain if the taking will be for something that is in the interest, health, or safety of the public at large. This applies, among other things, to the building of new roads or public parks.

It can also apply to utilities for the public good. In the dominion of provinces or states, the body of power authorizes eminent domain power to specific private and public organizations or firms, such a utility companies, which allows them to enact eminent domain actions to run power, telephone, gas, water or other necessary networks.

Throughout a majority of the world's countries, any landowner whose property is appropriated is entitled to just compensation, typically indicated as the property's current satisfactory market value. Condemnation proceedings are those actions for which land is appropriated under eminent domain. In Canada, eminent domain is known as "expropriation" while in the U.K., it is known as "compulsory purchase."

Eminent domain law and related proceedings can be quite different between varying jurisdictions. Typically, at the time that a body of government intends to appropriate private property, a series of conditional "if>then" steps are taken.

The first step taken is that a government body delegates buying property for current market value.

If the property owner decides they do not wish to provide their property for such a sale, the government files a court action to apply eminent domain. This is followed the required publication of a hearing notice.

After the hearing notification, the actual hearing is set up. At the hearing the government body has to show that it has begun good faith negotiations with the property owner to buy the property, with the exception that an agreement between the parties was not ultimately made. The government body also has to show that appropriating the land will be for a public use. The property owner may then provide counterclaims to those of the government body.

If the government body wins the case, at that same hearing they set up a second set of proceedings to ascertain the property's appropriate market value. After that fair market value amount has been applied to liens, mortgages, and related payments required for the property, the remaining balance is issued to the property owner. At the end of the proceedings, the government body is assigned the property's legal title.

However, if the government body does not win their case, or if the property owner is not happy with the verdict and proceedings result, the owner or the government can appeal the decision.

When private property is ultimately appropriated by a government body, it is referred to as "taking." There are many varieties of takings that may happen in the process of eminent domain.

The first is known as "Complete Taking" which, as implied by the name, is the action in which every portion of the property is seized.

The second is known as "Partial Taking". This implies that only some of the land will be appropriated by the government body. In this case, not only will the owner be paid for the lost portion of their land, but also for the lost value of the remaining land retained by the landowner caused by the potential disruption due to the partial taking.

There is another taking referred to as "Temporary Taking." In this case, some or all of the land is appropriated for a finite period of time, and the title is retained by the property owner. As with Complete or Partial Takings, the owner is paid for damages related to the taking, and when the expiration of the taking arises the owner retains complete possession of the property.

There are less invasive or committed variations of takings, known as Easements and Rights of Way. An eminent domain action can be used to secure an easement or right of way, such as when the department of water secures an easement over private land lay in pipe for common water needs. The owner of the land is allowed to use their property as they have previously as long as it does not interfere with the easement or right of way.

Fair market value for private property is what is called "fair value." This is considered that largest sum that could potentially be paid as such. Since market values change over time, the date the property is assessed will affect the value. Professional unbiased appraisers are employed to assist in a negotiation process when both the government body and private owner do not agree on fair market value.

Fair market value often includes more than land value alone. For example, if a company is run on the appropriated land, the company owner is typically entitled to compensation for the disruption or loss of the business from the appropriation. In some cases a business/property owner may be entitled to payment for "goodwill" loss, which is more than the value of the business lost. This overage compensation may be due to such considerations as reputation, location, or established customer relations. When a company leases the property in question, it is typically entitled to compensation for the cost of the lease, for installed equipment on the premises, and reduction in the value of the business.Shapiro


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