What Is Eminent Domain In Real Estate? (Question)

Eminent domain refers to the process by which the government may seize private property with proper compensation, but without the owner’s consent. that the property must be claimed for “a public use;” and, that “just compensation” must be provided to the property owner.

Contents

What is eminent domain and how does it work?

Overview: Eminent domain refers to the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.

What is an example of eminent domain?

In the United States, one of the most common examples of eminent domain is when the government is trying to build a road and the road’s path is obstructed by private property. Other examples include municipal buildings, public schools, or parks. Sometimes there’s simply no other place to put the public property.

What is eminent domain and its requirements?

Toribio defined the power of eminent domain as “ the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor.” It must be for public use.

Who benefits from eminent domain?

It helps everyone save money. Ultimately everyone saves money when eminent domain is instituted. This is because the costs for property are fair, the general public saves money or receives new services, and the property owners receive a fair market price that they didn’t have to spend months negotiating.

Is eminent domain fair?

When the government seizes private property under eminent domain, it must pay fair market value for it. Federal and California property law recognize that the fair market value of property taken under eminent domain is only truly “fair” if the property is valued considering its full capabilities.

Is eminent domain legal?

The power of eminent domain is a legal right of the government. As long as the government is acquiring the property for public use and has fairly compensated you, there is unfortunately not much you can do once your property has been identified as a government need.

Who is most affected by eminent domain?

predictions of Justices O’Connor and Thomas held true: Losses from eminent domain abuse “fall disproportionately on the poor,” and particularly on minorities. 35 Eminent domain project areas include a significantly greater percentage of minority residents (58%) compared to their surrounding communities (45%).

Why is eminent domain significant?

The true and original purpose of the law of eminent domain is to provide property which is necessary to complete a project that is for public use. Eminent domain also allows for utilities to be expanded into new areas as well as oil and other products to be transported in a safe way.

Can you stop eminent domain?

The only way to stop eminent domain is to challenge the government’s right to take. You can only do this if the government’s proposed taking does not meet the requirements for public necessity or public purpose. Even if you lose this challenge, you may still be entitled to a small portion of your property.

Where does eminent domain power come from?

Eminent domain is the government’s power to take private land for public use. The power of eminent domain is defined by the “Takings Clause” of the Fifth Amendment to the U.S. Constitution. This clause is also applied to state and local governments through the Fourteenth Amendment to the Constitution.

Is eminent domain ethical?

Two important ethical issues exist in using the eminent domain process to help one group of homeowners and not others. The first is the problem of moral hazard whereby the costs of risk-taking are passed along to other parties. The use of eminent domain to refinance underwater mortgages is an ethical slippery slope.

How does eminent domain affect the poor?

Aggressive use of eminent domain also damages the social fabric of poor communities because the displacement of residents, businesses, and churches undermines social ties. The Kelo decision generated a massive political backlash that led 45 states to enact eminent domain reform laws.

What is Eminent Domain in Real Estate?

Real estate has traditionally been the preferred investment for people seeking to accumulate long-term wealth for their families and future generations. By subscribing to our complete real estate investment guide, you will receive assistance in navigating this asset class. When it comes to taking private land for public use in the United States, there is a legislation called eminent domain that empowers the government to do so with or without the owner’s approval. If you are a property owner, it is critical that you understand how the law works and what alternatives you have when dealing with eminent domain proceedings.

What is eminent domain?

A private property may be required for public use by government bodies, such as county or city municipalities, from time to time, such as a public building or space, such as a post office, park, or health facility; for the expansion and construction of a road or highway; or for other public purposes. According to the Fifth Amendment of the United States Constitution, the government has the authority to seize private property for public purpose, as long as the property owner receives reasonable recompense for his or her loss.

There are three kinds of “takings” that might occur as a result of eminent domain:

  • Takeover in its entirety- when the entire land is bought for public use. When only a section or part of a property is bought for public use, this is referred to as partial take. When a property is only required for a specific length of time, it is referred to as a temporary take.

How does eminent domain work?

Condemnation is the legal procedure that is used to deal with eminent domain. The government will serve the landowner with a condemnation notice, which will inform him or her that the government intends to use its eminent domain authority. While eminent domain rules differ from state to state, in the majority of cases, the government will attempt to negotiate a purchase price for the property before taking possession of it. If all parties agree, the land or a portion of the property is temporarily or permanently deeded to the government for public use, and the property owners are compensated in accordance with the terms of the agreement.

  • The market approach, which is akin to a comparative market analysis (CMA) or an appraisal, utilizes comparable properties that have recently sold to determine a reasonable market value. Typically used in conjunction with residential real estate or property that is not income-generating. The income technique, which is comparable to determining the value of a commercial property with a cap rate, utilizes the business’s net operating income (NOI) to calculate a value. Typically used in conjunction with income-generating properties
  • It is determined by using a cost method, which takes into consideration the depreciation of the building to calculate the value of the land and the cost to replace the building. The market approach and the income approach are typically utilized when a property is so distinctive that they are no longer feasible methods of determining market value.

Disputes might be raised by the property owners if they believe the offer price or just compensation is not reasonable or equitable. If an agreement on a price cannot be reached, the case will be escalated to a condemnation hearing, during which the court will determine what the property is worth in the current market.

What property can be taken in eminent domain?

Property such as unoccupied land, land with commercial or residential real estate, or intellectual property can be legitimately taken by the government for the benefit of the general public if it is in the public interest. The taking of some lands that are utilized as cemeteries, gardens or orchards, or industries is not permitted in most states under the doctrine of eminent domain.

If a property is judged hazardous, has been abandoned for an extended length of time, or is being used for illicit activities, it may be seized and removed through a forced sale without the owner receiving appropriate recompense for his or her loss.

What are my rights as a property owner with eminent domain?

If the government is attempting to seize your property, you have the right to obtain reasonable compensation for your loss of ownership. According to the laws of most jurisdictions, appropriate compensation will include relocation expenses as well as the price of transporting certain building items such as gates, signs, and rights of access. In most cases, a reasonable price for the property may be negotiated, and you always have the option to protest or contest the amount of compensation awarded to you.

Although your property was not taken for public use in certain situations, you may nevertheless be negatively affected by the exercise of eminent domain in other instances.

Alternatively, you have the right to inverse condemnation, which is the process of obtaining just recompense from the government in this situation.

In summary

Although the government has the authority to take your property for public use in most instances, it is unusual that a property may be removed without reasonable compensation or prior notice if you own real estate. In the event that you have recently been approached about eminent domain and believe that you are not being fairly compensated for your land, you should consult with an eminent domain attorney who can explain your rights, inform you of the proper steps, and assist you with the eminent domain process.

What Is Eminent Domain?

Eminent domain is the authority granted to the United States government, states, and municipalities to seize private property for the benefit of the public after receiving appropriate compensation for doing so.

Key Takeaways

  • Eminent domain is the legal right of governments, such as the United States, to take private land for the benefit of the public after providing reasonable compensation. The exercise of eminent domain can be used to acquire everything from airspace, land, and contract rights to intellectual property if a compelling case can be established for their public purpose. Inverse condemnation is the legal term used to describe the legal issue regarding improper invocation of eminent domain, such as when property owners are not appropriately paid.
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Understanding Eminent Domain

The power to use eminent domain is provided under the Fifth Amendment to the United States Constitution. Most typical lawnations have abilities that are similar to these. In Canada, eminent domain is referred to as “expropriation,” in Australia, it is referred to as “compulsory acquisition,” and in the United Kingdom, New Zealand, and Ireland, it is referred to as “compulsory purchase.” Private property is seized through the use of condemnation procedures, in which owners can question the legality of the seizure and settle the issue of the fair market value of the property that will be used to compensate the government.

  1. The most obvious forms of condemnation include the seizure of land and structures to make room for a public construction project.
  2. Leases, stocks, and investment funds are all examples of eminent domain.
  3. As part of the fiscal year 2015 budget, Congress approved a bill preventing the Federal Housing Administration from financing mortgages for properties taken via eminent domain.
  4. The federal government might hypothetically use eminent domain to take Meta (previously Facebook) and transform it into a public utility in order to preserve people’s privacy and data.

This is because contract rights, patents, copyrights, and intellectual property are all vulnerable to eminent domain.

Eminent Domain Abuses

The Supreme Court has broadened the concept of what constitutes a public project, extending it beyond roads, trade centers, airport expansions, and other utilities to include anything that improves the visual appeal of a city or helps to revive a town, among other things. As a result of this notion of public use, eminent domain evolved to include the interests of large corporations. In the 1980s, General Motors purchased private property for the construction of a factory in order to create employment and increase tax revenues.

The most well-known example is when Pfizer seized the homes of a low-income community in New London, Connecticut, in order to construct a new research center.

While the Supreme Court affirmed this decision in 2005, some states enacted legislation to protect property owners against abusive eminent domain takings in the wake of the decision.

Inverse Condemnation

There is also a legal controversy concerning the government’s obligation to appropriately compensate persons whose property or assets have been seized or harmed as a result of the exercise of eminent domain authority. Private property owners have filed lawsuits against the government in a process known as inverse condemnation, in which the government or a private enterprise has acquired or destroyed property but has refused to compensate the owners. This has been used to collect compensation for environmental damages such as pollution and other environmental concerns.

In another instance, during Hurricane Harvey, the Army Corps of Engineers discharged a torrent from one of Houston’s two reservoirs, causing residences to be purposefully flooded, prompting the property owners to seek compensation under the doctrine of inverse condemnation.

Eminent Domain

The term “eminent domain” refers to the government’s authority to confiscate private property for the benefit of the public under specific conditions. For example, the government may occasionally demolish someone’s home in order to create space for a new roadway or bridge. Typically, in these situations, the homeowners are entitled to compensation for their losses, and the government must first go through a series of formalities before it may seize the property. Detailed information regarding the government’s power of eminent domain, the limitations on that authority, and your legal rights are provided in this section.

Eminent Domain and Federal Law

It is the “Takings Clause” of the Fifth Amendment to the United States Constitution that gives rise to the law of eminent domain in our country. The Supreme Court of the United States contributes to the resolution of key issues involving eminent domain. The founders of the Constitution were mostly affluent landowners who want certain protections against tyranny from the government. They were, however, cognizant of the fact that land might occasionally have to be seized for the public’s benefit.

This only applies to private land, and it must be utilized for the benefit of the general public. Interstate highways, to provide a frequent example, are often regarded as public goods by the general public.

What Is ‘Just’ Compensation?

Private landowners who lose their homes or property as a result of the application of eminent domain must be compensated “justly,” according to the United States Constitution. That is, however, not entirely clear. In most cases, this is determined by how much the landowner can reasonably anticipate to get in fair market value. There are a variety of elements that influence the value of a piece of land, including its size and any resources it may contain. Sometimes the federal or local governments seize land for a limited amount of time, which makes valuing the property much more difficult to do.

Eminent Domain and Condemnation Proceedings

When the government takes private property for public use under the authority of eminent domain, it follows a certain procedure. It all starts with the organization’s long-term expansion or public betterment goal. As soon as planners have determined which private properties may be affected by these plans, they collaborate with their own appraisers to determine a suitable assessment for the property. Providing that the private property owner agrees to the government’s offer, the transaction should be quite uncomplicated.

The property owner (usually with the assistance of an attorney and an appraiser) will submit their own property appraisal if the issue proceeds to the condemnation hearing stage.

It is also possible to argue that the claim is overly wide in scope, which, in some limited situations, may result in the purchase being restricted in scope.

What Is the Meaning of ‘Public Use?’

Because exercising eminent domain necessitates the use of the taken property for the benefit of the general public, it’s crucial to grasp what that entails from a legal standpoint. The word “public use” does not relate just to the actual, direct usage by the public — as would be the case for parks or roads — but rather to any use that provides a broad benefit to the general public as a result of it. For example, eminent domain may be used to acquire a plot of property that contains an abandoned factory and clear the land of any structures on it.

When it comes to eminent domain, things might become a little complicated. For further information, please see the links provided below, or contact a real estate attorney if you have any particular questions concerning your property rights.

Bona Law – Antitrust & Competition

A figurative knock on the door from the government, demanding that you surrender some or all of your property, might occur at any time. If you own real estate, be prepared to accept such a knock. The state may notify you that they are taking your property outright, or they may do something that effectively takes your property, or a piece of your property, without your knowledge. Eminent domain and inverse condemnation are two tactics that vary from one another in that they both seek to take property without compensation.

Eminent Domain

Whether you agree with it or not, the authority to compel the sale or confiscation of private property for the benefit of the public has a long history as a part of the sovereign power of government. Eminent domain is the legal term for this type of authority. These powers are coupled with a governmental commitment to pay “fair recompense” for the property in both the California and United States constitutions. The government is the one that initiates the use of eminent domain. In rare situations, the property owner may be able to contest the government’s power to seize the property under the terms of the Constitution or statute law, although such challenges are rarely successful.

It is almost always the case in eminent domain lawsuits that the fight is about how much the land is worth—what is known as “just compensation.” California law defines fair market value as “the highest price on the date of valuation that would be agreed to by a seller who is willing to sell but who is not under any particular or urgent necessity to do so, nor who is obligated to sell, and a buyer who is ready, willing, and able to buy but who is not under any particular necessity to buy, each dealing with the other knowing all of the uses and purposes for which the property is reasonably adaptable and available.” Section 1263.320 of the California Code of Civil Procedure.

According to what you could think, this might result in a conflict amongst professional appraisers.

Inverse Condemnation

The government is the one that initiates the use of eminent domain. In contrast, inverse condemnation is a legal action brought by a property owner when the government takes possession of their land without following the normal eminent domain processes. These are frequently land-use conflicts, in which a property owner challenges development limits imposed by the government. This is frequently referred to as a “taking,” and it, like eminent domain, entails the government compensating the owner of the real estate in question.

It can also occur from damage to the property or any other loss in its use or value as a result of the actions of the government.

A taking might also occur as a result of a government regulation that is overly restrictive.

However, keep the following in mind: Physical invasions, direct appropriations, denial of all economically feasible uses of the property, severe interference with the property owner’s capacity to meet investment-backed profit expectations, and certain restrictions to land ownership are all prohibited under federal law.

Jarod Bonaco co-authored a law review essay on takings, which was published in the Georgetown International Environmental Law Review, which you can read about here.

In the event that you have any questions, please contact us at + 1 858 964 4589.

A boutique legal company specializing in real estate litigation, commercial litigation, appellate litigation, antitrust, and constitutional challenges to government action, Bona Law PC is located in San Diego, California. You can get in touch with us using this page.

Eminent Domain

When the government exercises its eminent domain authority, it means it has the authority to take private property and put it to public use. As stipulated by theFifth Amendment, the government may only employ this authority provided it offers reasonable compensation to the property owners.

Just Compensation Requirement:

As a result of the decision in Kohl v. United States (91 U.S. 367 (1875), the Supreme Court declared that the government may confiscate property via the exercise of eminent domain as long as it provides reasonable compensation to the property owner. According to Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419 (1982), the Supreme Court clarified that when the government takes property and establishes a permanent physical occupation of the property, it must provide the property owner with just compensation, even if the area taken is small and the government’s use does not significantly impair the owner’s economic interest.

Public Use Requirement:

The Supreme Court ruled in Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005) that the broad advantages that a community would get from the advancement of economic growth are sufficient to qualify as a “public purpose” under the Administrative Procedure Act.

Further Reading:

For further information on eminent domain, consider this article in the Cornell Law Review, this essay in the University of Michigan Law Review, and this piece in the New York Law Journal.

The Do’s and Don’ts of Eminent Domain

Many individuals feel driven to reach a rapid settlement with a party that is attempting to seize their property. This generally occurs as a result of one of three factors:

  1. When it comes to obtaining more money, they believe they lack the authority to challenge the government or a major private firm. These individuals believe that they require the funds immediately in order to finance the acquisition of a new property or to cover other costs. They do not believe that they can afford to engage an attorney to assist them
  2. Yet, they do believe that they can.

None of these difficulties, on the other hand, should preclude you from obtaining further funds. First and foremost, the Constitution ensures that you will get just recompense if your property is taken by the government or any other body. Fair recompense does not always equate to what the opposing party claims it to be. You have the right to take the other party to court and have a jury of your peers determine how much you should be compensated for your property as fair recompense. Consideration of this right, on the other hand, may result in blockages number 2 and 3 above.

As soon as settlement discussions fail, the organization claiming ownership of your property will launch a lawsuit to condemn and seize your property.

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However, at the same time, the opposing party is required to deposit with the Clerk of Court the sum they feel your property is worth in their opinion.

Finally, you may believe that you are unable to afford to pay an attorney to defend you out of your own money.

Instead, we will be compensated as a percentage of the total money that we are able to collect for you, given that the amount recovered exceeds the amount of your initial offer.

What Is Eminent Domain in Real Estate?

If you work in real estate as a real estate agent, you will come across the words “law of eminent domain” and “eminent domain” rather frequently. But what exactly does this mean? The government’s right to expropriate private property for the benefit of the public is known as eminent domain. The homeowner receives compensation in the form of the property’s fair market value in return for this. Let’s take this a step further and break it down: ‍

How Does Eminent Domain Work?

The process of eminent domain begins when the government or an agency has a project that is in the public interest. As a result, the project would need to be located at a specified place that would result in the most benefit to the general public. Once a client has picked a specific property, an agent will conduct an evaluation of the property to ascertain its current fair market value. Consequently, the sum estimated by the agent will be used to calculate the compensation that the property’s owner will get in exchange for the property.

Following the determination of the fair market value, the offer is submitted to the property’s owner.

If the buying party and the seller are unable to reach an agreement, then discussions may be initiated.

A real estate attorney helps guarantee that the property owner is informed of his or her legal obligations.

What Does “Public Use” Mean?

One of the basic conditions of eminent domain is that the property be used for public purposes. To be considered for “public use,” a project must serve a purpose that is beneficial to the general population as a whole. For example, in the event if a project is beneficial to personal interests or a specific group of individuals, no eminent domain will be used to complete the project. Bridges, reservoirs, highways, roads, and parks are just a few examples of projects that are appropriate for the general public.

It is necessary to propose projects to the California Public Utilities Commission (CPUC), such as new power lines or pipelines.

The Supreme Court will then order the public utility to reimburse the property owner at fair market value when this has been accomplished.

How Do You Determine Fair Market Value?

There are three basic techniques to establishing the fair market value of a piece of real estate.

When a residence is about to be appraised, the appraisal agency tells the owner of the property in advance of the evaluation. In addition, the appraiser should be present during the process. The techniques that were employed were as follows:

The Comparable Sales Approach

The concept of comparable sales is founded on the assumption that no one else would be prepared to pay more for a similar property than they would. This method of determining the worth of a parcel of land makes use of data from previous sales of comparable properties to arrive at a conclusion. When calculating the fair market value of residential properties, this will be the technique taken by the agencies. Houses with comparable characteristics are distinguished by characteristics such as the number of bedrooms, bathrooms, and other amenities.

The Income Approach

The revenue strategy is particularly well suited for assets that generate money. The fair market value of a property is determined by the amount of revenue that the property is capable of producing. As an investor, you may use this approach to determine the worth of a property.

The Cost Approach

This strategy is utilized for speciality constructions in which the property of interest is one-of-a-kind and is intended to function for a certain purpose, such as a museum. In situations like these, the only permissible method of replacing it is to recreate the building in another location. For the purpose of determining the fair market value of a piece of property, the experts would consider two main factors. The first component is the value of the land itself, which includes any structures that may be there.

Also worth noting is that depreciation is taken into account and removed from the final fair market value when using the above mentioned technique.

What are the Types of Eminent Domain?

There are various distinct sorts of eminent domain, and the following are a few examples of each:

Complete Taking

When the government seizes a full parcel, this is referred to as a complete taking. The compensation paid to the owner is equal to the fair market worth of the property when it is put to its optimum use.

Partial Taking

It is merely a portion of the land that has been taken under the partial taking. Two components make up the just compensation for partial taking: the financial component and the legal component. Direct damages are the first component to consider. The value of improvements made to the purchased land is referred to as direct damages. The other component is indirect damages, which are also known as severance damages in some cases.

Temporary Taking

In accordance with the name, this sort of eminent domain will only compel the owner to give up their plot of property for a specified period of time. In most cases, the rental value of the property that is being inhabited serves as just compensation for the taking in question.

Permanent Taking

Permanent taking refers to the fact that the property has been condemned by the government and will never be returned to its rightful owner. Roads, highways, and other public infrastructure projects are the most typical types of projects that involve permanent takings.

Final Thoughts on Eminent Domain in Real Estate

The sensation of being in the eminent domain is an emotive one. Nobody likes to be evicted from their house. However, this is a power that the government wields over landowners and property managers. It is necessary for eminent domain to be invoked in order for it to be of “public benefit.” Highways, schools, and other essentials are examples of public works projects. If this is the case, there are no legal grounds for exercising eminent domain.

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Developers Must Establish Public Purpose to Justify Eminent Domain

A well-established right of the government to condemn or take private property for the benefit of the public is known as “eminent domain.” The majority of cases involving eminent domain concern whether or not the owners of confiscated properties got just recompense for their losses. An exception to the general norm is that a taking for public reasons is sustained so long as the owner is appropriately compensated for the property that has been condemned. The experience has shown that challenges contesting the public purpose of takings have been rarely successful, even where there was an obvious private profit as a result of the condemnation.

  1. Private vs.
  2. Because the initiatives resulted in better infrastructure or fell under the umbrella term of urban regeneration, there were few obstacles to overcome.
  3. Local governments aspire to establish destination shopping centers and mixed-use residential/retail/office projects in order to entice residents and consumers back to their downtown cores.
  4. Often, local governments extend generous handouts to private developers in the form of tax breaks and other appealing offers, which may or may not include the use of eminent domain to accomplish their goals.
  5. After widespread opposition, the project was halted before it could reach the courts, but a number of additional cases are still pending as land-use planners strive to define the line between public good and private advantage.
  6. When, however, does a municipality’s desire to repair dilapidated neighborhoods or to enhance its revenue base go beyond the scope of its authority of eminent domain and become unlawful?
  7. Any private party that becomes engaged in a public initiative stands to gain or profit in some way as a result of their participation.

Eminent Domain is a difficult challenge.

For example, in the case of Township of West Orange v.

The court determined that such a take was done to further the private interests of the developer and was thus not a lawful use of the power of eminent domain on the part of the government.

Ultimately, the court determined that the municipal redevelopment authority had wrongly outsourced its condemnation jurisdiction to the private developer.

Partnership v.

These parking spaces were part of a Clean Air Act compliance plan that was designed to stimulate carpooling activities and reduce pollution.

In addition to this, the plaintiff challenged the turnpike authority’s acquisition of a specific parcel of land from which access to nearby commercial property was made possible.

Because the area selected did not adequately fulfill state requirements, and because alternative neighboring land was available, the court found that no hearings or studies had been done before the location in question was selected.

The taking, on the other hand, is vulnerable to dispute as a misuse of the eminent domain authority if a clear public purpose cannot be demonstrated.

City of Bridgeport, was handed down by the Connecticut Supreme Court, which rejected the city’s plan for redevelopment, which included taking the club’s property, which was in good condition when the club attempted to be absorbed into the project but was turned down.

As a result, it determined that the taking would increase the project’s attractiveness to private investors in the future.

The city won the case.

Moreover, they claimed that the takings were unjustified and that they were in violation of their equal protection rights.

Four buildings, on the other hand, were demolished because the plans for an office park on their property were not as clear as they should have been.

Although public interests were adequately demonstrated in the judgments described above, the judges’ opinions were either incorrect or out of proportion to the condemnation sought in the situations listed above.

While this series of cases represents a minority point of view, it appears to signal a trend toward more scrutiny of condemnation acts that is worth keeping an eye on.

Eminent Domain and Property Rights

Currently, there is a bipartisan drive to enhance infrastructure throughout the United States, which has the potential to undermine property owners’ constitutional rights. Property owners can preserve their rights and avoid costly hazards when a governmental agency proposes the seizure of private property for public use through efficient pre-condemnation planning before the property is taken. Eminent domain litigation is a complex area of law that involves representing private property owners, renters, and company owners throughout the United States in disputes involving condemnation, inverse condemnation, and other property rights concerns of varying magnitude.

For more than two decades, we have worked with clients to achieve negotiated, amicable, and creative solutions.

If a taking occurs, we will work tirelessly to obtain the highest possible compensation for the taking while also advocating for measures to alleviate the effects of the taking, such as lowering the scale of the taking or changing the design of the project.

In addition to our own highly skilled real estate, land use and environmental lawyers and government affairs and tax attorneys, we work with a network of leading outside experts including engineers, architects and planners.

  • Prior to condemnation, prepare agreements for monetary damages and non-monetary concessions
  • Litigate to defend takings
  • And conduct pre-condemnation planning. Lobbying by the government to get a taking eliminated or reduced

FAQs About the NYS Eminent Domain Procedure Law

Q:Can you explain what “eminent domain” is? The term “condemnation” refers to the right of the government to confiscate private property for the benefit of the public. For example, clearing land to make space for a road or public park, or constructing homes for the poor are all examples of eminent domain. The Constitutions of the United States and the State of New York both compel the government to compensate you fairly if it takes your property. Q: How does the government determine which properties are required for a particular project?

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Preliminary to the acquisition of land for a public project, the condemnor must hold a public hearing at a location that is reasonably close to the property that may be acquired for the project in order to inform and evaluate the potential benefits of the proposed project to the general public as well as its impact on the surrounding environment and residents of the area where the project will be constructed, among other things.

  • If you are a property owner who may be affected by this hearing, you will be notified in advance of the hearing.
  • If you choose to provide your own oral or written remarks and/or documentation, you will be given a reasonable time to do so.
  • Affected property owners must be provided with a copy of the whole determination and findings upon request and at no additional expense.
  • A:The representative of the local real estate office of the agency or department that requires your property will most likely be the first person to approach you, and he or she will provide you with basic information on the possible acquisition of your land.
  • A: You have the right to contest a municipality’s or agency’s conclusion that your property is required for a public purpose under state law.
  • This type of petition for appeal must be submitted in the appellate division of the supreme court in the county in which the property is situated, and it must be confined to only the questions, facts, and objections that were stated during the hearing.
  • Q: What is the fair market value or equitable recompense in this situation?

Based on the applicable legislation, the date on which the value is determined will differ.

If the matter goes to trial, both sides would generally provide expert testimony from appraisers as to the fair market value of the property in order to win the case.

A:The law compels the state to compensate each property owner for the fair market worth of their property, which is normally the same amount of money that the property would bring in if it were sold today under current market circumstances.

When determining the value of your property, the state considers the numerous characteristics of your property as well as the prices at which properties identical to yours are being sold.

Our staff will go through all of the methodologies that were utilized in analyzing the property with you in detail.

A:If you and your representatives are unable to come to an agreement, the law allows you to file a claim in the State Court of Claims against the other party.

Following that, a trial will be held before the Court in order to determine the outcome of your claim.

You, as well as the State, will be required to submit an appraisal to the Court, and the Court will assess the amount of compensable damages that are recoverable. In these types of situations, the services of an attorney are almost always required.

Eminent Domain is Hard to Fight — Here’s How to Spin It in Your Favor

In our minds, a world in which every real estate transaction is straightforward, certain, and rewarding is what we are working toward. As a result, we strive to maintain high standards of journalistic integrity in all of our postings. Disclaimer: The information contained in this blog post is intended to be used as a useful guide and for educational purposes only, and is not intended to be considered legal advice. If you want assistance with an eminent domain case, you should seek the advice of an experienced real estate attorney.

on your land.

This is known as eminent domain and occurs when the government takes your land without your consent.

To get you started, we’ll provide you with a straightforward explanation of eminent domain that is guided by the counsel of real estate attorneys from around the United States.

The Fifth Amendment outlines eminent domain

The Fifth Amendment to the United Specifies Constitution allows the government the authority to eminent domain in the form of a provision that states that “private property shall not be seized for public purpose without reasonable compensation.” Let’s take a closer look at these terms:

Just compensation

Regardless of whether the government is federal or state, it has the authority to confiscate private property if it pays the owner the equivalent of the property’s fair market value. However, that is not an objective statistic that all sides can agree on. As opposed to this, fair market value is often defined as the amount that a willing and well-informed buyer would pay to purchase a piece of property on the open market. The amendment also provides property owners with the ability to appeal the legality of the seizure under certain circumstances.

Saadeh, a real estate attorney, investor, lecturer, and specialist on the issue of eminent domain who practices in New Jersey.

Public use

Federal or state governments have the authority to confiscate private property if they pay the owner the equivalent of the property’s fair market value (or more in some cases). Nevertheless, that is not an objective statistic that all sides can agree on. Fair market value, on the other hand, is often defined as the amount that a willing and well-informed buyer would pay to purchase the property on an open market. A property owner’s ability to appeal the validity of a seizure is also granted under the new amendments.

According to Rajeh A. Saadeh, a New Jersey-based real estate attorney, investor, lecturer, and expert on the issue of eminent domain, “‘just recompense’ is an ephemeral idea that depends on the art of valuation as well as the expenditures that everyone will incur in litigating.”

Here’s an overview of the eminent domain process

If you’re the target of eminent domain, here’s a sneak peek at what you can expect in the coming months:

  1. The property is initially inspected by a government body in order to assess its fair market value. Guidelines issued by the Department of Housing and Urban Development dictate that the fair market value “shall be established by an impartial state-licensed or state-certified appraiser.” Your notice of appraisal will be sent to your house, and you or your real estate agent will be able to accompany the appraiser while they analyze your property. As a homeowner, you should acquire a copy of the assessments so that you can anticipate the government’s offer and make appropriate plans with your attorney
  2. The government will make you an offer that is equal to or greater than the appraiser’s estimated fair market value, often within 45 to 60 days of the appraisal being completed. The offer will contain a “summary statement,” which will describe the rationale for the offer
  3. And Once you have received the offer, you will have the opportunity to negotiate with the agency until all sides are satisfied with the outcome. After signing a purchase contract, you’ll get money at a mutually agreeable time. It’s possible that if you and the government are unable to come to terms, the agency will file a lawsuit to seize your property through the use of eminent domain in a court of law. Before the award is made official, you have the right to be notified of the procedure and to be heard in a fair hearing before the award is made final. The notice must be issued 90 days before the hearing if the property is inhabited, or 60 days before the hearing if the property is not occupied.

(Photo courtesy of Romain V / Unsplash)

You can negotiate for a higher sale price and better terms

In the event that you get a notice of eminent domain, you should immediately contact an attorney who is well-versed in real estate law. Your attorney will act as a point of contact between you and officials from the government. They will negotiate on your behalf in order to obtain the greatest possible deal, and they will represent you in court if the parties are unable to reach an agreement. “Whenever you find yourself in a scenario involving eminent domain, always negotiate with the authorities.

Here are some of the issues that your attorney can assist you in negotiating: In order to negotiate the greatest price possible, you need also employ a top real estate agent who can assist you in determining the fair market worth of your house.

They can then provide these comparable properties to the appraiser in order to advocate a higher appraised value for your house..

Weigh professional fees with the reward

For their services, real estate attorneys typically charge between $150 and $350 per hour, while the price may be higher based on the attorney’s level of experience. You’ll need to compare the expense of those fees against the possible payout in order to determine whether or not employing an attorney is advantageous in your scenario. When it comes to some things, the price is well worth it. CohenWinters attorney Andrew Winters discusses how he assisted a landowner with an elderly renter in an eminent domain case.

In addition to the first $50,000 offer to the landlord, a total of $200,000 was made, plus $51,000 in compensation for the tenant’s relocation, according to the report.

Homeowners rarely fight off eminent domain

If you are adamant about not surrendering your property to the government, you have the right to challenge the government’s authority to take it through eminent domain. However, the only way to accomplish this accomplishment is to demonstrate to the court that the government does not intend to utilize your land for legitimate public purposes, which is a highly unlikely conclusion. When the government follows the proper procedures in exercising its eminent domain authority, it is often very difficult to overturn a claim that the taking is being done for public purposes, according to Saadeh.

By the time the homeowner becomes involved, the government’s case is generally solidified, making it exceedingly difficult for the homeowner to prevail in the court of public opinion.

Header Ben Turnbull / Unsplash is the photographer that captured this image.

Eminent Domain & Condemnation Explained

Eminent domain is the authority to acquire any property for the benefit of the public, without the owner’s agreement, in exchange for the payment of a fair and reasonable amount of compensation. It is inherent in the state of Illinois and exists independently of the Illinois Constitution or any other statutory legislation in the state. The Illinois Constitution, on the other hand, places restrictions on the authority of eminent domain. “Private property must not be taken or destroyed for public use without just compensation as provided by law,” declares Article I, Section 15 of the Illinois Constitution, which prohibits the taking or damaging of private property for public use without reasonable compensation as provided by law.

It is customary for the most contentious component of an eminent domain action to revolve around the calculation of fair compensation for the property owner.

What is Condemnation in Real Estate?

When a building is declared unsafe, hazardous, or unsatisfactory, the term “condemnation” is sometimes used to describe the destruction or demolition of the structure. Using the term “condemnation” to refer to a sort of method used to acquire private property against an owner’s will in the context of the power of eminent domain does not imply anything bad about the private property that is being sought to be acquired by the government. They are interchangeable when used in the context of eminent domain proceedings.

Common Types of Condemnations in Illinois

It is possible to acquire private property of any sort, whether it be real estate or personal property, through the use of eminent domain. The most common types of takings or condemnations in Illinois involve the acquisition of real estate or real property by the Illinois Department of Transportation (“IDOT”) or the Illinois State Toll Highway Authority (“ISTHA” or “Tollway”) for the purpose of constructing or improving roads and highway infrastructure. Additionally, the use of eminent domain or condemnation can be utilized to acquire any interest in real estate.

The eminent domain is a highly specialized aspect of the legal profession.

Experienced Chicago Area Eminent Domain and Condemnation Lawyers

The condemnation attorneys at RyanRyan have extensive expertise in eminent domain and condemnation, and they are well-versed in the nuances and subtleties of Illinois eminent domain law. Your rights will be vigorously protected by the attorneys at RyanRyan, who will lead you through the condemnation process to the best possible resolution.

Contact RyanRyanto to discuss all of your eminent domain requirements in the Chicago region and around Illinois. Check out our Frequently Asked Questions for additional information about eminent domain and property rights in Illinois.

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