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One possible
challenge to the government's right to
take can be raised where the project for
which the property is being taken is not
for a "public use." The
Fifth Amendment of the United States
Constitution allow private property
to be taken by eminent domain only for a "public
use."
The term
"public use" has been
interpreted very broadly by the Courts.
The project need not be actually open to
the public to constitute a public use.
Instead, generally only a public benefit
is required. Elimination of
blight through redevelopment projects,
for example, is a public benefit which
courts have held satisfies the
"public use" requirement of the
Federal Constitution. This is true
even though the property will typically be
transferred to a private redeveloper
and may never be open to the general
public. It usually doesn't
matter if the redeveloper may be doing
nothing more than building a new mall or a
complex of movie theaters.
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BOOK:
Takings:
Private Property and the Power of Eminent
Domain |
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Private
Property and the Constitution - explores the social and
economics of Eminent Domain. What is
"for the good of
mankind...".
Take a "look inside" this book and
read excerpts- |
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Eminent Domain Groups
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Castle
Coalition | Institute
for Justice
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When a buyer and a seller
negotiate a price for property, they often
discuss the prices similar properties have
sold for in the recent past. Similarly,
appraisers use sales of similar properties
that have taken place at or near the date of
value to help arrive at an opinion of value
for the subject property. These similar
properties have been referred to as
"comparables."
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Frequently, there
are disagreements over whether these
"comparable" sales involved
property that is really equivalent to the
property whose price is being negotiating.
When each expert witness gave you his or her
opinion as to the fair market value of the
property in this case, he or she based his
or her opinion largely on the prices
actually paid in sales of other properties.
You must decide the usefulness of the
evidence of each sale in determining the
market value of the property taken in this
case. |
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COST APPROACH vs
INCOME APPROACH |
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Learn
more about how a property may be
valued using the COST APPROACH vs
the INCOME APPROACH. Read more here. |
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[For example, if an expert based
his or her opinion on prices paid for other
properties that you do not think are similar
to this property, and the expert did not
properly account for such differences in his
or her analysis, his or her opinion of the
fair market value should not be given much
weight in your deliberations.]
Here are some of the
questions you may consider in deciding if
the sale price of other property is helpful.
1) Is
the other property of similar size?
2) Does
the other property have a similar location?
3) How
close to the date of taking was the other
sale?
4) Were
both the buyer and seller negotiating
freely?
The experts have
mentioned other factors to show the
similarity or dissimilarity of other sales.
It is up to you to
sort out the differences with what you think
a buyer and seller, freely negotiating at
arm's length, would consider in arriving at
a sale price for the property taken in this
case. Give the evidence on each of those
other sales whatever weight you think it
deserves in determining the market value of
this property
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| What
is Eminent Domain? Can your property simply be
taken from you? |
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| "Eminent
domain" (also called
"condemnation") is
the power of government agencies to
acquire property for "public
use" so long as the government pays
"just compensation." Recognized
public uses for which the power of eminent
domain may be used include, among other
things, schools, parks, roads, highways,
subways, fire and police stations, public
buildings, and the elimination of
blight through redevelopment (as in
Asbury Park - or not?) A key attribute of
eminent domain is that the government can
exercise its power of eminent domain even
if the owner does not wish to sell his or
her property. |
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Even though the vast majority of
government agencies possess the power of
eminent domain, on occasion, a successful
challenge to the government's right to
take a particular property for a
particular project can be made. You should
be cautioned, however, that such
challenges are the exception, not the
rule, and usually result only in a delay,
rather than outright prevention of the
government's right to take.
Typical challenges to the right to take
are for failure of the government to
follow the proper procedural steps towards
eminent domain. If the government fails to
follow the proper procedures, a right to
take challenge is sometimes possible.
Again, however, it must be remembered that
the circumstances allowing a successful
challenge to the right to take are rare.
Each case must be evaluated on its own
facts and experienced eminent domain
counsel should be consulted. Seeking
compensation for the taking, rather than
challenging the government's right to
take, will be the property owner's usual
remedy.
Also see: Our Commercial
Real Estate Glossary
and our
Appraisal
Guide |
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