November 14

How To Fend Off Eminent Domain Claims

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You worked hard to become a homeowner, and it's something you're proud of. Between mortgage payments and the improvements you've always wanted to make, you work even harder to make it the home of your dreams – and to keep it that way.

But in the case of eminent domain, it's out of your hands. A clause in the Fifth Amendment to the Constitution limits the government's right to take private property for public use by requiring the property owner be given “just compensation” in return.

Eminent domain and what the government – either federal, state or local – has deemed “public use” has been a hot-button topic for years. While the taking of property in whole to build a highway or in part to help widen a road is largely recognized as standard public use, the condemning of property for redevelopment by private institutions has also been done in the name of eminent domain.

Opposing eminent domain is a hard-fought battle, but don't let fear or lack of understanding the law keep you from receiving your just compensation or arguing the intended use of the property fails to meet the needs of the public. To better protect your rights as a property owner, follow these guidelines to ensure you understand the process of eminent domain and the resources available to you.

Devon Thorsby at usnews.com makes the following recommendations.

Consult an attorney. To better protect yourself and your property, seek legal advice as soon as you hear your property could potentially be taken for public use, which could come to you in the form of a mailed letter, in-person notice or phone call, depending on the government planning to take the property and its practices. Eminent domain is difficult, and not every lawyer is capable of navigating the details of the law.

“It's less a real estate transaction and more a lawsuit,” explains Robert McNamara, senior attorney for the Institute for Justice, a nonprofit group that fights eminent domain abuse. “And I think what frequently surprises property owners is that the part of [the process] that really is a lawsuit – the part where you can waive your rights and the part where you get locked into things – happens in many cases long before the actual formal lawsuit begins.”

Even seemingly simple instances of eminent domain, like an easement that allows the government to go onto the property without taking full possession of it or the taking of a few feet from the property line to widen a road, should get a thorough read-through by a professional because there may be some fine print that could affect you down the line.

“When an easement is written by the condemning authority, it's written by their attorneys, so it's most likely going to be written in a manner that's most favorable to their needs and their uses,” says Cathy Newman, executive director of Owners' Counsel of America, an organization that aims to help private property owners threatened with eminent domain nationwide. “We would recommend an owner have an eminent domain attorney review that easement to ensure that their rights are protected and they're not held … in a less favorable result afterward.”

An example Newman cites is the easement of a portion of rural property being taken for utility usage. The initial offer may include conditions like regular access to the land for maintenance, but an attorney could recognize the need to negotiate for prior notice to go on the property, not damage fencing and ensure livestock are not able to get loose in the process.

Get a second opinion. To determine what constitutes as “just compensation” for your property, the government will have it appraised to calculate its market value. While all property appraisers should be unbiased, third-party sources, it's a good idea to get a second opinion from an appraiser of your choosing.”

Go to usnews.com to read the complete article by Devon Thorsby.

The Institute for Justice takes on cases nationwide that appear to be instances of abuse of eminent domain. “It's important to remember that it's not just a legal fight, it's a political fight. Many of the projects that the Institute for Justice stops, we don't stop through litigation, we stop through political activism,” McNamara says.


Tags

eminent domain, home owner property rights


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