Can I Refuse To Sell My Property in an Eminent Domain Case?

“Eminent domain is the taking of private land for public use by the state or federal government,” says Texas eminent domain attorney Charles B. McFarland. Government entities exercising the power of eminent domain are called “condemnors.” This is why eminent domain attorneys are sometimes called condemnation attorneys.  

Of course, the government cannot simply take your property — they must pay you for it. It’s the last of the rights mentioned in the Fifth Amendment to the U.S. Constitution: “Nor shall private property be taken for public use, without just compensation.” 

This means you can’t simply refuse to sell to the government when it acts under the right of eminent domain. What you can do is challenge the government’s use of eminent domain, particularly if you think: 

• It hasn’t met the public use requirement;
• It isn’t offering fair compensation; or 
• It didn’t give you adequate notice of the eminent domain process. 

If you’re facing an eminent domain case, speak with an experienced eminent domain attorney as soon as possible.

What Counts as a Taking? 

A taking is when the government seizes private property rights for public use.

“Takings can occur in many different contexts. It could occur when land use or zoning regulations of property go too far because of their impact or restriction on the property owner’s ability to use the property,” says McFarland. Other takings, such as easements or right-of-ways for utilities, might apply to only a portion of your real estate, leaving some remaining property for your continued use.  

Another term related to takings is inverse condemnation. Whereas eminent domain proceedings are brought by the government to take private property, inverse condemnation proceedings are brought by landowners to challenge the government’s taking. 

“Instead of the normal procedure of the government needing your property, recognizing that it needs your property, and filing a lawsuit to acquire the property, they just go ahead and do what they’re going to do with the property without filing litigation first,” says McFarland. “Situations like this force the landowner to bring proceedings challenging the taking.” 

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Two Requirements for a Legitimate Exercise of Eminent Domain 

“There are only two requirements on the power of eminent domain. First, it has to be for public use. Second, it has to be accompanied by a payment of just compensation. This is calculated using the fair market value of the property,” says McFarland. 

So, what constitutes public use? A lot, it turns out. Even private development can be considered public use if it spurs economic development. “In the landmark case Kelo v. City of New London (2005), the U.S. Supreme Court confirmed that the concept of public use is very broad. They refused to raise the barrier very high against the government,” says McFarland.  

Above this constitutional baseline, “Every state has a different threshold or the ability to impose a different threshold for public use. And many states, in response to the Kelo decision, enacted legislation to prevent economic development, or the encouragement of economic development, as a public purpose that would justify the exercise of eminent domain.” 

While no clear test applies across the board for what is a valid exercise of eminent domain, there are clear examples of valid and invalid uses. “If the public is going to own the facility, then that’s a clear public use. If the public will have a right of use to the property, that’s pretty broadly established to be a public use. It gets murkier and more questionable when the property will be owned by a for-profit or private entity.” 

The crucial point is that if “you were to statistically analyze challenges to public use associated with the exercise of eminent domain, you would find that it’s very rare that a public project is found to lack a public use.” This means that successful challenges on public use grounds are rare. McFarland calls them “statistically insignificant.” 

The Importance of Managing Expectations in an Eminent Domain Case 

McFarland says that a key role of eminent domain attorneys is to help manage the client’s expectations.

“At our firm, at least, we won’t engage in futile efforts to challenge projects that we don’t believe will be successful. That doesn’t mean we never challenge public use or the right to take. We do that frequently, particularly when private entities have been delegated the authority to take. But these are very challenging pieces of litigation. They can be very expensive and come with very little hope of return.”  

McFarland says that eminent domain lawyers often have “better success stopping a project on the market valuation or just compensation side than on the public use side of eminent domain lawsuits.” A lawyer can assess and negotiate the government agency’s initial offer to ensure you get fair compensation.

Find Experienced Legal Help

If you’re facing an eminent domain action or bringing an inverse condemnation action, seek legal advice sooner rather than later. Visit the Super Lawyers directory to find an eminent domain attorney in your area.