How Is Eminent Domain Legal, and What Are Your Rights as a Property Owner?


Think about this: you’ve spent years building your dream home, a great bungalow in a quiet neighborhood. But then, you receive a letter from the city announcing plans to build a new highway that would require taking your property

This is eminent domain in action. It’s the legal power of the government (federal, state, or local) to take private property for public use, with roots in the Kohl v. United States case of 1876.

How Is Eminent Domain Legal

Truthfully speaking, this power can feel unfair – we’ll tell you why! We are all familiar with the Great American Dream – and doesn’t owning real estate in the United States make you closer to that utopic dream? We feel, it does. 

Sometimes, important public projects can’t move forward without taking a few pieces of private land. This creates tension: protecting individual property rights vs. ensuring the greater good of the community. 

This is where an experienced eminent domain lawyer can help. They explain your rights as a property owner and guide you through the legal process. They can even help you negotiate a fair deal if the government takes your land.

This guide will explain both sides of the story. You’ll learn about eminent domain laws and what rights you have. We’ll also talk about how a lawyer can help you get the best outcome in this situation.

What Is The Fifth Amendment?

What Is The Fifth Amendment

In the United States, the legal foundation for eminent domain is derived from the Constitution’s Fifth Amendment. According to this particular amendment, the American government cannot use any private property for the public without paying the right compensation.  

While the amendment sounds pretty simple, it does have two associated aspects:

1. Fair Compensation:

Of course, the first point to notice in this case is fair compensation. The only way the American government can use personal property for the masses at large is by paying a fair price for the same. 

This is basically known as ‘just compensation’ and is generally based on the land’s market value. 

2. Public Use Requirement:

Now, coming to the second aspect – the government cannot seize your property just because they feel like it. Of course, there needs to be clarity – what is the purpose behind taking your property? 

Moreover, another related aspect here is all about what basically qualifies as public use. 

Conventionally, public use talked about different concrete spots such as public buildings, schools, and roads. But then, in 2005, the Kelo v. City of New London case in the Supreme Court became controversial. 

The Kelo v. City of New London Case:

In this particular case, New London’s government wanted to seize private properties, including local businesses and homes in a struggling waterfront district. 

The government’s plan was to basically demolish these private properties first before using the same land for a brand-new commercial project. According to New London’s government, demolishing the area would help them to develop commercial properties and create jobs. 

The residents didn’t agree and said that seizing their private properties for the economic development of the city was not really a legitimate thing to do. Unfortunately, the Supreme Court, in a 5:4 decision, ruled in the city’s favor. The court reasoned that since the project would create jobs and contribute to the area’s economic development, it made sense. 

Of course, private property owners and advocates of property rights didn’t take this well. They said that this decision gave the local government too much power – how can the government seize private land for their private gain? In response, several states began to pass laws that restricted the use of eminent domain for the sake of economic growth. 

These laws were all about defining ‘public use’ more narrowly, focusing on conventional purposes such as public facilities or infrastructure projects. 

To date, the debate about what ‘public use’ entails is on! Some people argue that a broader definition of the term allows governments to take a flexible approach to address both the needs of the community and economic development. 

Moreover, there are people who also believe that it is vital to protect individual property rights, thereby preventing the government from seizing lands for their benefit. 

What Are Property Owner Rights?

What Are Property Owner Rights

So, the government says your property is needed for a public project. What are your rights?

Due Process and the Right to Challenge:

The eminent domain process typically involves these steps:

Government Notification:

You’ll receive a formal notice from the government agency outlining the project and their intent to acquire your property.


The government will likely make you an initial offer for your property. You have the right to challenge both the taking itself (if you believe it’s not a true public use) and the compensation amount offered.

If negotiations fail, you can take the government to court. An experienced eminent domain attorney can help you argue your case and fight for the fair compensation you deserve.

Negotiating Just Compensation:

“Just compensation” is supposed to make you whole after the taking. Here are the factors to be considered:

Fair Market Value:

This is basically the price a willing buyer would give to a seller who’s equally willing in an open market. Appraisers will consider comparable properties in the area to determine this value.

Property Improvements:

Fixtures and upgrades you’ve made to the property can increase the compensation you receive.

Inconvenience and Relocation Costs:

The disruption caused by moving can be factored in.

Severance Damages:

If the taking only affects part of your property, and the remaining portion is diminished in value, you may be entitled to additional compensation.

Why Having a Lawyer on Your Side Matters:

Here’s how hiring a reputable attorney can help you:

Understanding Your Rights:

Eminent domain laws can be complex, and what you’re entitled to can vary depending on your location. A lawyer can break it down for you in clear terms.

Negotiating a Fair Deal:

The government’s initial offer might not reflect the true value of your property. A lawyer can fight to ensure you’re getting what you deserve. They can negotiate with the government to get you the highest possible compensation.

Challenging the Taking (if applicable):

Not all takings qualify as “public use,” and a lawyer can assess your case and determine if there are grounds to challenge it.

Gathering Evidence:

They can track down documents and appraisals to support your case for fair compensation. These might include comparable property sales, estimates for improvements you’ve made, and relocation costs. 

Dealing with Paperwork:

Eminent domain involves a lot of legal paperwork. Leases, contracts, and appraisals can be confusing, and deadlines can be strict. Your lawyer will handle all this for you, saving you time and frustration so you can focus on what matters most.

Final Thoughts:

Eminent domain law factors in the good of the people, which in most cases will outweigh your own. So, when you’re faced with a notification to surrender your property for a public project, your best move would be to touch base with your lawyer. 

They can help you get the best possible compensation, and in case the planned use of the land infringes on your rights, they’ll argue your case in court.

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