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Eminent domain explained

| Apr 23, 2021 | Eminent domain |

Eminent domain (also known as “condemnation”) is the legal process by which a government agency (and even private individuals is certain limited contexts) compels you to sell your property to the government agency for a public purpose. A condemning agency can ask a court to order you to transfer ownership of your property or an interest in your property (such as an easement). However, in all cases of eminent domain, the private property owner is entitled to just compensation and is also afforded certain protections from abuse.

What Rights Do You Have?

While in many cases you may not be able to stop condemnation, eminent domain cases can be disputed. The condemning government agency must follow a prescribed statutory process in order to properly condemn property.  In general, a condemnation can only be contested if the government isn’t fulfilling its statutory obligations. This could include intending to use the property or property interests being acquired for non-public uses or purposes or not paying just compensation.

What is just compensation?

The phrase “just compensation” comes directly from the Fifth Amendment to the U.S. Constitution, and is reinforced in the Utah Constitution, which states that “private property shall not be taken or damaged for public use without just compensation.”

If the government agency is acquiring your entire property, just compensation means that you receive the fair market value for the entire property. If it’s acquiring just a portion of the property, you’re entitled to fair market value for the property taken, as well for improvements to the property (such as buildings). In addition, you’re to be compensated for any damage done to your remaining property resulting from its separation or “severance” from portion taken (known as “severance damages”).

You might be eligible as well for relocation assistance if you had to relocate your home, farm, or business because of condemnation.

Eminent domain abuse and disputes

Over the last few decades, the U.S. Supreme Court has expanded the definition of what constitutes a valid “public use.” In the past, public use included strictly public designations such as an airport or a highway. However, in certain contexts the definition has been expanded to include projects and purposes  that revitalize the relevant local community.

Disputes between private property owners and government agencies over eminent domain are common, especially over matters such as whether an agency has authority to condemn property; whether the public use is sufficient for condemnation; whether the appraisal of the property is accurate; whether compensation for the property is just; and compensation for relocation is sufficient.

Disputes can be settled in mediation or arbitration through the Utah Office of the Property Rights Ombudsman, or in a civil lawsuit filed by the agency seeking to acquire your property.

Legal representation

The Utah Department of Commerce says you aren’t required to have an attorney for its mediation and arbitration services (but you are welcome to retain legal representation at all times and at all stages of the eminent domain process), but it cautions “in a condemnation lawsuit, we recommend that you retain competent legal counsel experienced in eminent domain matters.”

It should be noted that once the agency has given you an appraisal and an offer for your property that you believe is inadequate, the burden of proof is on you to prove that your property is worth more than what’s been offered.