If you have been contacted by a unit of the government about seizing your private property, you may be wondering, ‘What is eminent domain’. If the property the government is eyeballing is the site of your home or business, you may be less than thrilled at the prospect of relinquishing it to Uncle Sam.
Unfortunately, you are certainly not the first to experience this frustration: Eminent domain laws have long existed to allow government to confiscate land, a practice which has ebbed and flowed throughout history. According to the Independent Journal,”Government in England and then in the United States never fully relinquished its power to confiscate property, but efforts continued to limit such power through revolts and contractual constraints, such as Magna Carta and the U.S. Constitution. The Constitution therefore included the Fifth Amendment’s requirements of just compensation and public use…”
As a result, the Fifth Amendment is the basis for the current status of eminent domain in the U.S. According to the U.S. Department of Housing an Urban Development, “Eminent domain is an exercise of the power of government or quasi-government agencies (such as airport authorities, highway commissions, community development agencies, and utility companies) to take private property for public use. Sometimes these entities may propose to use their eminent domain authority to take public housing property.”
This often means that roads, courthouses, schools and utilities can be erected on the land your home or business sits on. However, eminent domain law has been stretched to less obvious forms of ‘public benefit’. For example, private commercial development (such as strip malls) may be considered enough of a benefit to the community to fall within the legal basis for eminent domain. The stark reality is that your state government has power over all property in the state, both private and public.
In fact, new uses for eminent domain are constantly being created and enforced. According to a recent Huffington Post article, eminent domain is being considered as a way to assuage the housing crisis in California: “California's San Bernardino County, and in the cities of Fontana and Ontario, policymakers are considering a plan to use eminent domain — that civic power that allows a government to seize whatever property it likes — as a way to acquire the mortgages of distressed homeowners and restructure them in a way that allows the borrowers to stay in their homes.” This illustrates the variety of rationales used to justify eminent domain seizures. Protecting yourself and your property can be a difficult task.
The Process of Eminent Domain
Now you know enough to answer the question, ‘What is eminent domain?’ However, if you have been notified that the government wishes to acquire your privately held land, the following steps (which are typically followed) are important to know:
- Notification: A government entity will have identified your property as a potential target for eminent domain, and will contact you regarding their intentions.
- Negotiation: This will initiate a negotiation between you (with your legal representation) and government representatives for the purchase of your property for ‘fair value’.
- Potential Legal Action: If you do not wish to sell, a court action may be filed by the government to exercise eminent domain, and a notice of the hearing will be filed, as required by law.
- Hearing: In a hearing, the government must show that negotiations were pursed to purchase the property, but that an agreement was not achieved. Additionally, the government must also confirm that they plan to transform your property toward a public use, as defined by law. At this point, you will be given the opportunity to react to the government's claims.
- Eminent Domain is Established: Upon the government’s success in its petition for eminent domain, proceedings will establish the property’s fair market. Your payment will be used to satisfy any existing mortgages, liens and encumbrances on the property. The remaining balance would be paid to you, as the owner of the property.
- Eminent Domain is Rejected: If the government is not successful, or if you are not satisfied with the outcome, an appeal of the decision may be made by either party.
Eminent domain law and legal procedures vary, sometimes significantly, between jurisdictions. If you are faced with an eminent domain case, seeking legal representation is the key to protecting your rights as a property owner. Contact our Chicago Real Estate Attorneys today for a Free Legal Consultation.
DISCLAIMER: All information on this website are provided for informational purposes only and are not intended to be construed as legal advice. Suburban Legal Group PC shall not be liable for any errors or inaccuracies contained herein, or any actions taken in reliance thereon.