Can the Government Buy My Property?
Yes, and here's what to know about eminent domain in ArizonaBy Benjy Schirm, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on December 6, 2023 Featuring practical insights from contributing attorney James T. Braselton
Use these links to jump to different sections:
- What Is the Power of Eminent Domain Used For?
- What Legal Issues Can You Challenge in an Eminent Domain Case?
- Getting an Appraisal for the Fair Market Value of the Property
- The Eminent Domain Process Often Ends in Settlement
- Defending Your Property Rights with an Experienced Attorney
If you’ve received a piece of certified mail stating in no uncertain terms that the city intends to purchase your land or real estate for the good of the public, it might not be a scam. Under the Arizona Constitution, the state government is authorized to exercise eminent domain authority “if the taking is for a public use and the property owner is paid just compensation.”
Yes, you read that right: The government can take your private property if they have a legitimate public use for doing so.
What Is the Power of Eminent Domain Used For?
Generally, this is utilized to build or widen roads, secure water distribution sites, or other public purposes that are deemed to be for the good of the public.
The property owner must be paid just compensation based on fair market value for their property, but that is often where disputes occur.
What Legal Issues Can You Challenge in an Eminent Domain Case?
“Typically, these cases are about addressing the amount of compensation that the condemning authority has offered,” says James T. Braselton, an attorney at Dickinson Wright in Phoenix who often represents commercial landowners in eminent domain cases.
“When the state department of transportation or other authority condemns land, they almost always do so in connection with a major road construction project. These are well recognized as public uses and are deemed necessary for the public use, so the right to condemn is almost never challenged,” he adds.
Getting an Appraisal for the Fair Market Value of the Property
In Arizona, the government cannot exercise a condemnation action until they have acquired an appraisal and tendered an offer to the property owner consistent with that appraisal.
“Appraisals are a combination of empirical data and analysis along with opinion,” Braselton says. “So, there is always a degree of subjective opinion. When the property owner disagrees with that opinion and believes that the property is worth more than the tendered offer, that’s when I get involved. People are entitled to just compensation under the constitution. What is just and fair is what is litigated.”
To determine what is just and fair, a landowner must prove what they believe the property is worth. Most often, this is done through one independent appraiser and one private appraiser. These reports are the primary evidence for moving the case forward.
The Eminent Domain Process Often Ends in Settlement
Around 90 percent of these cases settle out of court, Braselton says. “It’s so expensive to try a lawsuit all the way through the jury trial.” These cases typically will take between 18 and 30 months, but less complex cases can be resolved very quickly, in six months or less, he adds. A rare few of his cases have been drawn out several years.
To widen or construct a road, the Arizona Department of Transportation doesn’t often take just a foot of property, but often an entire parcel, Braselton says. He once represented a church in a condemnation action where ADOT took the entire 10-acre parcel and church to build the 202 Santan Freeway. “To build a freeway, you need thousands of acres of land. This often isn’t residential parcels, but commercial parcels that are condemned by cities,” he adds.
Sometimes, there are one or two developed residential neighborhoods that need to be condemned in order for a project to proceed.
Defending Your Property Rights with an Experienced Attorney
While your property may not have the equity required to fight city hall all the way to trial, you may seek legal advice from an experienced eminent domain attorney to explain the steps and the process to you. This will allow you to make informed decisions about what you believe you deserve for your property. The same can be said for owners of commercial properties.
“Our representation in one case was responsible for a starting offer from ADOT of around $10 million, which, when all was said and done, a jury awarded our clients just over $19 million,” Braselton says.
For more information about this legal area, including how the U.S. Supreme Court has interpreted the Fifth Amendment to the U.S. Constitution as setting due process limits on the government’s power to take property, see our overview of eminent domain law.
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