 Sam
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 Posted: Thu Apr 08, 2004 10:43 pm Post subject: Eminent Domain |
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Eminent domain refers to the lawful power of the state government to take over private property in exchange of compensation. The government makes such acquisition for its use or on behalf of any third party. Such acquisition of real property often becomes a necessity when the government has to complete a public project such as a road, and the owner of the property does not wish to negotiate a price for its sale.
The act of the government exercising its authority of eminent domain is often referred to as condemnation. Condemnation through eminent domain implies that the government has taken the property, and the only thing left behind is deciding upon the amount of the compensation.
The Process:
The process of eminent domain includes the following steps.
- The government tries to purchase of the property at the fair market value.
- In case the owner disagrees to sell off at the market value, the government files a court action for eminent domain.
- The court calls both the parties for a hearing where the government demonstrates that it has negotiated in good faith while purchasing the property. The government should also prove that the eminent domain is meant for public use, as defined by law.
- If the government succeeds in its petition, proceedings are held and the fair market value of the property is determined.
- The owner is paid but prior to that all kinds of liens on the property are satisfied. The remaining balance is then offered to the owner. The government can then take over the title.
- Both the parties can appeal the decision if they are not satisfied with the proceedings in the eminent domain.
An eminent domain includes different types of takings as given below.
- Complete Taking:
In this case, the entire property of the owner is taken under consideration.
- Partial Taking:
Here only a part of the property is taken over, say for instance, to expand a road. The owner receives compensation for that part of the property and also for the effect the taking has on the value of the remaining property.
- Temporary Taking:
Here the entire property or a portion is appropriated for a limited time period. The owner retains the title and gets the compensation for any loss related to the taking. The owner can repossess the property at the conclusion of the taking. For instance, the government can temporarily take over a piece of property in order to complete a construction project.
- Easements and Right of Way:
The government often carries out an eminent domain in order to obtain an easement or right of way. For instance, the government may transfer the power of eminent domain to a utility company so that the latter obtains easement over private land. But the owner can freely use his property for any purpose which does not stand in between the easement.
The eminent domain is not limited to real property. The government can also condemn the value in a contract such as franchise agreement. |
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