How does eminent domain work?

| Sep 12, 2019 | Residential Real Estate Transactions |

One of the cornerstones of American society is that its citizens enjoy the protection of property from undue governmental interference. However, the state or local government can use certain circumstances to take ownership from citizens or businesses, whether they like it or not, under the premise of public use. This, in short, is called eminent domain. It falls under the “Takings Clause” of the Fifth Amendment and always includes “just compensation,” although that is a relative term.

How taking of land works

Not the same as property seizure, which is due to abandonment or criminal activity, the “taking” of land has different categories:

  • Complete taking: This occurs when the government purchases the entire property.
  • Partial taking: This occurs when the government purchases a portion of the property.
  • Temporary taking: This occurs when the government needs the property for a specific period.

Taking involves the purchase of the property, but it can also be tied to impacts upon a property through zoning or development that can decrease the value of the property.

The process

Generally speaking, the government will start by attempting to buy the land for a fair price from the private owner. If the owner refuses or disagrees on the price, the government can then file a court action and post a public notice involving a hearing. The government then outlines its case for buying property for public use, and the landowner has a chance to object and offer evidence to strengthen its case. Expert testimony is often given at this time.

Common examples of public use

Typically, the reasons for buying land or filing an action include:

  • Highways, roads, bridges and transportation projects
  • Structures involving water supply
  • Expansion of parks and public spaces
  • Build a government building

Much grey area in the process

Issues involving municipalities are seldom clear cut or straightforward, nor does the government always get its way. Those with questions about eminent domain can speak with an attorney who handles real estate matters here in Arizona to get answers applicable to a specific property.