Eminent Domain and Due Process Law - Eminent Domain

Eminent Domain - Can Government Take Your Property? Eminent Domain Law

Eminent domain means the power of a government to acquire a person's private property for public use. This process is also known as a taking. The term condemnation is sometimes used to refer to the process of seizing a private property by a government body.

Pursuant to the 5th Amendment of the Constitution of United States, a government can take personal and real possessions of its citizens. According to the clause on public use under 5th Amendment, taking can be done by local governments, as well as the state and federal government. The 5th Amendment clause on public use is made applicable to all state governments through the due process clause of the 14th Amendment. When a local government body like a municipality takes private property, it is known as municipal taking.

The property can even be taken without an owner's consent. However, acquisition of a private property can be done only for a public purpose. According to the laws on eminent domain, the government should compensate the property owner, and the amount should be a fair value.

Once a property is taken or action for condemnation is filed, compensation is decided. The owner of the property can challenge this action under following grounds:

  • when taking is not done for public purpose
  • when condemnor is an unauthorized person
  • when the condemnor fails to follow the steps legally required

There are different kinds of takings:

  • complete taking
  • partial taking
  • temporary taking

Complete taking is the appropriation of the whole property being taken. Partial taking is the appropriation of a part or a piece of the property being taken. Temporary taking is the appropriation of a whole or part of a property being taken for a short period.

Under the takings clause, even a temporary taking will be compensated. However, any kind of taking will not be valid if the owner is not served with adequate notice.

Takings under eminent domain should not be confused with the term adverse possession. Adverse possession is another type of taking through possession of a private property for a statutory time period. Unlike taking under eminent domain, the process of adverse possession does not provide for the owner's compensation.