Eminent domain is the power of the state over all property within the state, expressly the power to involuntarily or voluntarily purchase property for a public use and, in certain cases, private use. The owner of appropriated land is entitled to compensation per the Fifth Amendment to the Constitution. This compensation is generally defined as the fair market value of the property. The process of purchasing real estate under eminent domain is referred to as condemnation proceedings.
The Eminent Domain Process
While the eminent domain legal processes can vary significantly between municipalities, basically, the following steps outline the process:
- The state or municipality attempts to negotiate with the landowner the purchase of the property at fair market value.
- If the negotiations fail or if the owner does not wish to sell, the state or municipality proceeds to court to file a petition to exercise condemnation. The owner is then served with papers and notified of the condemnation hearing.
- At the hearing the government entity suing for condemnation must demonstrate that it engaged in a good faith negotiation to purchase the property. The government entity must demonstrate that the taking of the property is in the best interests of the public. At this time the owner of the property can respond to the government’s claims and make arguments for denying the condemnation action.
- If at the hearing the judge rules in favor of the condemnation petition, proceedings are held to establish the fair market value of the property. This could involve the obtaining of three independent appraisals to take the average appraised value. The hearing judge may rule that other factors have to be taken into account as well. After the petition is satisfied, the government entity obtains deed to the property. If the government entity is unsuccessful with the condemnation petition or if the property owner does not agree with hearing results, either party may appeal the ruling.