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What is eminent domain?

Sometimes it appears the government has taken over an area for its own use, even against the landowner’s consent. For Arizonans, the prospect of losing your land to such a situation is a scary one, but certain key factors must be met before this type of extreme action can be taken.

Eminent domain describes the state’s power to seize private property without the owner’s consent. Obviously many real estate disputes would arise in this situation. The government is not able to take just as piece of land it chooses, though. A certain level of need must be met before eminent domain may be considered.

Previously, the necessary standard that must be met for a proposed project to justify the taking of land was fairly high. It required the power to be used only for projects involving ‘public use,’ such as highways, railroads, or public facilities. A recent trend, however, has loosened the reins somewhat to include ‘public benefit’ projects, like the U.S. Supreme Court’s decision in Kelo v. City of New London allowing the taking of private property for economic development to revitalize a depressed urban area.

Though the idea that the government may take private property in certain circumstances can be alarming, landowners can find at least some slight relief in knowing they would not be losing everything in the deal. Rather, the government must compensate landowners if such a taking does occur. The U.S. Constitution’s Fifth Amendment protects landowners by forbidding the taking of property without just compensation. The determination of what is ‘just’ is often left up to interpretation since the amount in question generally is not negotiated by the current owner.

Property owners that find their land the subject of a possible eminent domain taking may consult an experienced real estate attorney. This will allow them to become educated on the rights and options available to them so they can receive just compensation if the state’s eminent domain power is exercised.

Source: Columbia University, “What is Eminent Domain?” accessed Nov. 2, 2014


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