WHAT IS EMINENT DOMAIN
Please read this explanation from your Eminent Domain Attorney to help you understand the complexity of the Law better.
“Eminent Domain” refers to the right of the government or its agent to take private property for public use with payment of compensation. The legal process used for such a taking is called “condemnation.” The Fifth Amendment of the U.S. Constitution and Article I, Section 17, of the Texas Constitution establish the rights of eminent domain, guaranteeing that a private property owner will receive just compensation for the taking. In the event that the government (or its agent) and private property owner cannot agree on that compensation then, ultimately, they are entitled to have the judicial system determine the compensation based on the law.
Under eminent domain law, the government only has the right to take property to be used for the public’s greater good. Property can be condemned under eminent domain to build public roads, create municipal parks, construct schools or public libraries, or to provide utilities. In deteriorated areas that present a threat to public safety, the government also has the right to take some property through eminent domain. In 2012 Supreme Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans satisfied the “public use” requirement in the Taking Clause of the Fifth Amendment. This ruling was controversial, however, and many states responded by tightening their eminent domain policies to protect private land owners.
Private entities that may sometimes have the power of eminent domain if used for a project that has been deemed to be for public use. For example, private companies can sometimes force the sale of private property for oil and gas pipelines if used to further a common carrier function.
The Process of Eminent Domain
When the government exercises its right of eminent domain it begins the process of condemnation. Although this is the terminology used, it doesn’t mean anything is wrong with the property. It is not suggesting that the property is being condemned as unsafe or labeled as a tear-down. The first step in condemnation is appraise the property to determine fair compensation. The government will then make an offer. The private property owner can then accept or decline this initial offer. Declining the offer does not mean, however, that the property owner will keep his land. The government can still force the taking. It does mean that further negotiations will be needed to come to an agreement.
If a property owner feels as though the governments offer is below fair market value, his next step may be to hire an attorney to represent him in further negotiations.
FIGHTING EMINENT DOMAIN
Do you need a Eminent Domain Attorney
In some instances a private land owner can prevent the government from condemning his property by proving that it’s not taking the land for a legitimate public use. The private property owner could also argue that other land options for the same project are also available. Stopping the condemnation altogether can be a challenge. One of the best courses of action a private property owner can do in the face of an eminent domain claim is hire an attorney who specializes in the field.
The Fifth Amendment of the United States Constitution states that no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. Today this right is safe guarded by the polices established by each state under eminent domain.
Eminent domain was created to authorize the government or the condemning authority (called the condemnor) to conduct a compulsory sale of property for the common welfare. Condemning may conjure up images of bulldozers or wrecking balls, but in this context, it means taking over. A condemnor would be granted this right if health or public safety were at stake or if some other benefit to the greater good of the public community were proven. In all of these scenarios, just compensation is required.
In the state of Texas over 95% of the land is privately owned – three times more than any other state! But Texas is also rich in oil and gas resources, so pipeline companies want to use these private lands for their projects. An agreement is often reached with the landowner, but in the event that there is a failure to reach an agreement, the company may use eminent domain to condemn the necessary land.
Condemnation proceedings vary according by state but usually consists of two phases: proceedings that relate to the right of the condemnor to take the property, and then, if that right is established, setting the amount of compensation to be paid to the private property owner. The owner has the right to due process during these proceedings and must be notified in a timely manner and given reasonable opportunity to address the appropriateness of the eminent domain claim and whether or not the compensation is just. Tax compensation also exists for land-owners whose property is taken under eminent domain. If property is compulsorily or involuntarily converted into money (as in eminent domain) the proceeds can be reinvested without payment of capital gains tax provided it is reinvested in property similar or related in service or use to the property so converted, no capital gain shall be recognized.
Americans staunchly oppose eminent domain being abused for private corporate gain. In the 2005 ruling in the Kelo v. New London case, an instance where the government wanted to take an entire neighborhood for private development, the Supreme Court decided that economic development was a public use in accordance with the fifth amendment. The verdict was controversial, many cried foul, and 44 of the states reformed their eminent domain laws in response. Despite this backlash, abuse of eminent domain still exists. In 2014 the house passed the Private Property Rights Protection Act which puts federal restrictions on using eminent domain for economic development.
Countries all over the world have versions of eminent domain laws on the books, and the practice goes back to Biblical times when when King Ahab of Samaria offered Naboth compensation for Naboth’s vineyard. Even so, changing laws and the whims of local courts can leave private land owners feeling unsettled in the face of a possible corporate condemnor. Legal representation should be strongly considered.
CONTACT THE LAWYERS AT THE LAW OFFICE Of CORBIN SNOW TO FIGHT FOR YOU
If you are facing a regulatory taking, condemnation or other eminent domain action in Texas, contact the Texas Eminent Domain Attorney at The Corbin Snow Law Firm, to learn how we can help. Our condemnation attorneys have represented more clients throughout Texas on more projects than any other firm and our attorneys are experts in the field of eminent domain.
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