What Is The Difference Between “Eminent Domain” & “Condemnation?”

While the terms “eminent domain” and “condemnation” are often used interchangeably, their true meanings may come as a surprise to most.

Eminent Domain Vs. Condemnation

Eminent domain is the inherent right or power of the government to “take” private property for public use. The New Jersey Supreme Court has noted that the right of eminent domain is of ancient origin, is inherent in all government, and requires no constitutional provision to give it force. Valentine v. Lamont, 13 N.J. 569 (1953). In New Jersey, the State is vested with the power of eminent domain as an attribute of sovereignty, but the legislature may also delegate the power to other agencies and arms of the government (i.e., counties, municipalities, N.J. Dept. of Trans., the Casino Reinvestment Development Authority, etc.). See N.J. Const., Art. 4, Sec. 6, par. 3. Notwithstanding this substantial power, the government may not take property for public use without paying the property owner “just compensation.” (Emphasis added).

Condemnation, on the other hand, refers to the process and procedure by which entities exercise their eminent domain authority. For instance, New Jersey’s “The Eminent Domain Act of 1971” (the “EDA”) provides uniform (or, at least it was intended to) legal requirements for all entities vested with the power of eminent domain. In the most general terms, the EDA provides a four-step condemnation process:

• An attempt to resolve the property acquisition outside of litigation through bona fide negotiations between the condemning authority (the “condemnor”) and the property owner (the “condemnee”);
• If negotiations are unsuccessful, the condemnor must seek a final judgment from the Court duly authorizing the power of eminent domain;
• Thereafter, Court would appoint three commissioners who engage in a non-binding arbitration related solely to the issue of “just compensation”;
• If a party appeals the “commissioners’ award,” a trial is held on the issue of “just compensation.”

In addition to the substantive condemnation process set forth in the EDA, the New Jersey Court Rules (R. 4-73, et seq.) specifically address (1) the initiation of the formal condemnation proceeding in Court, (2) the commissioners proceeding, and (3) the Law Division trial on the issue of just compensation. In sum, the term “eminent domain” refers to the government’s right to take private property and “condemnation” is the process of actually carrying out that right.

What It Means For Property Owners

Many property owners mistakenly believe that the government has unyielding power when exercising its right of eminent domain. On the contrary, property owners are entitled to specific safeguards under the law to ensure that the government acts within its constitutional and statutory limits. One noteworthy example is the right of a property owner to demand a jury trial to resolve the issue of just compensation following an appeal of a commissioners’ award. On many occasions, a jury trial is a necessary mechanism for property owners to obtain the largest award of “just compensation” for their property. Additionally, under the EDA, condemnors are required to engage in pre-litigation “bona fide negotiations” with the property owner.

Regardless of the procedural safeguards in place, the vast amount of relevant case law demonstrates that the government does not always act within its bounds. For over 50 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for staunchly defending its clients’ constitutionally-recognized property rights. If you are confronted with the threat of eminent domain, please feel free to contact us for a consultation.