This Weeks' Topic

Eminent Domain

The Supreme Court recently decided that private property could be taken by eminent domain to be used for private commercial development. This has caused uproar as citizens across the country feel their property rights are being threatened

Why does the government have the right to seize someone's property for public use? 

Going back to the earliest European legal systems, people did not have absolute rights over their land. The king was considered owner of the entire kingdom, and anyone who owned land was a tenant who was allowed to live there in return for payment of taxes.

So the king could cancel that agreement for a variety of reasons, most notably for failure to pay those taxes.

This tradition is the legal foundation for the concept of eminent domain. Eminent domain is based on the principle that all rights to real estate is created by the government - and, without government authority, there would be no individual ownership of real estate. So the government can exercise that authority to take the land back for its own purposes, such as for roads.

Where is this authority defined in our legal system?

The government's ability to take property, as well as the primary limit on that ability is defined in the 5 th Amendment of the Constitution. It says in part: "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."

Like many aspects of the Constitution, the specific methods for deciding what qualifies as a public use and what is considered just compensation is not spelled out. Courts over the years have sorted through those complicated issues.

How does eminent domain work?

If an entity, such as a government agency, wants to use privately owned land for a public use, they must first make an unqualified offer in good faith to purchase the property from the owner. If the owner rejects the offer, and the proposed use for the land qualifies as public use under applicable laws, then the process of seizing the property by eminent domain can begin. This is often called "condemnation."

Typically, both sides will then hire lawyers and appraisers to determine a fair market value for the property.

A three person court-appointed committee made up of people indifferent to the case will decide on a fair market value for the property. The owner can dispute this amount, known as the award, in which case things will proceed to a jury trial to determine a fair award for the property. Under federal law, the owner is also eligibile for reasonable relocation costs.

Does a recent Supreme Court decision allow the government to seize private property for private commercial development? 

Traditionally, the public use clause was considered to mean that the land would be actually used by the public. Parks, roads and civil engineering projects, and certain infrastructure improvements, such as electrical lines or power plants are all considered constitutional public uses of land that can be taken by eminent domain.

The Supreme Court's decision in the case of Kelo v. City of New London gave the government the power to make eminent domain seizures for a broader range of uses, including private commercial development. The reasoning is that this increases the tax base of cities and towns, and results in an overall benefit to the public. 

Does this mean that all private property owners are at the mercy of government officials who want to pad the tax rolls?

No - the Supreme Court included a very clear message to states and local governments in their decision: governments are free to make their own laws that specifically define and limit what are considered legitimate public uses of property. Many states have legislation in the works that would block private developers from getting land through eminent domain.

Are there any laws in the works in Missouri that would help protect private property from being seized for let say another shopping strip or grocery store?

Missouri actually has had a task force in place since June of 2005 to study the issue and make recommendations on new laws that might limit eminent domain. The task force is working to:

• Develop a definition of "public use" that allows state and local governments to use eminent domain when there is a clear and direct public purpose while at the same time ensuring that individual property rights are preserved.
• Develop criteria to be applied by state and local governments when the use of eminent domain is being proposed.
• Recommend specific eminent domain legislation for possible consideration by the Missouri General Assembly.

A report is due from the task force in October of this year.

Disclaimer
This information is general and may or may not apply to your situation. The information contained on this web site is not to be considered as legal advice. Since no two cases are identical, we recommend that you contact an attorney in your jurisdiction to discuss the specific facts of your case. Furthermore, since statutes and case law change so frequently and due to information provided by other sources, we make no warranty or guarantee concerning the accuracy of the content of this or any other web sites to which we link.