Can I Refuse to Sell My Property in an Eminent Domain Case?
Simple refusal isn’t an option, but challenging the validity of a taking isBy Canaan Suitt, J.D. | Last updated on January 19, 2023
Use these links to jump to different sections:
- What Counts as a Taking?
- What’s Required for the Legitimate Exercise of Eminent Domain
- Managing Expectations in an Eminent Domain Case
- Questions for an Eminent Domain Attorney
Let’s start with the basics. “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,” which 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.”
What this means practically is that 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
- It didn’t give you adequate notice of the eminent domain process
If you’re facing an eminent domain case and think that the government’s offer is too low or that there’s another problem, speak with an experienced eminent domain attorney as soon as possible. A lawyer familiar with eminent domain law in your state will be able to assess the offer and give sound legal advice for your particular situation.
What Counts as a Taking?
When the government seizes private property right for public use, says McFarland, this is known as “a taking.”
“Takings can occur in many different contexts,” he adds. “It could be that a taking occurs when land use or zoning regulations of property go too far and become a taking because of their impact or restriction on the property owner’s ability to use the property.”
Some takings, too, 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.” McFarland explains that the word “inverse” means that “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.”
In other words, the government takes property without paying just compensation. Situations like this “force the landowner to bring proceedings challenging the taking.”
To sum up: eminent domain proceedings are brought by the government to take private property, whereas inverse condemnation proceedings are brought by landowners to challenge the government’s taking.
What’s Required for the Legitimate Exercise of Eminent Domain
“The only two requirements on the power of eminent domain is that it has to be for public use and it has to be accompanied by a payment of just compensation, which is calculated using the fair market value of the property,” says McFarland.
So what constitutes “public use”? A lot. It doesn’t even have to be literal. Private development can be considered public use if it spurs economic development. “In the landmark case Kelo v. City of New London [from 2005], the Supreme Court of the United States confirmed that the concept of public use is very broad and that they weren’t going 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 there is no clear test that 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 is going to be owned by a for-profit or private entity.”
The crucial point, he adds, 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.”
Meaning successful challenges on “public use” grounds are rare. McFarland calls them “statistically insignificant.”
Managing Expectations in an Eminent Domain Case
As a result, McFarland says that a key role of an eminent domain attorney 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 that 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 value or just compensation side than the public use side of eminent domain lawsuits.”
Questions for an Eminent Domain Attorney
If you’re facing an eminent domain action or need help with an inverse condemnation action, speak with an experienced attorney as soon as possible.
Most eminent domain lawyers give free initial consultations for potential clients. These meetings let you get legal advice about your claim without initial costs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What limits does my state place on the government’s power of eminent domain?
- How likely will a challenge to public use succeed?
- Is the valuation of my property accurate, and can I get more?
- What is the process of eminent domain litigation, and how long does it take?
- Is it worth challenging the government, or should I accept the offer?
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