The Heavy Burden of Eminent Domain
Key Takeaways
- The government can take private property through eminent domain but must pay just compensation to property owners.
- Property owners face significant burdens during condemnation, including pressure to accept below-market values and difficulty selling or using their property.
- The Constitution requires the public to bear the cost of takings, not individual property owners who lose their land.
In theory, eminent domain is the inherent power of the government to “take” private property for “public use.” Can the government take private property? Yes, but with important constitutional protections in place.
When the government elects to exercise this power, the Constitution requires that “just compensation” be paid to the property owner in exchange for the taking. Based on this theory, it is easy to observe that the individual property owner bears a significant burden when the government uses eminent domain.
After all, this process is totally involuntary and requires the property owner to participate in a condemnation procedure that may seem confusing without the guidance of experienced counsel. Unfortunately, the “cloud of condemnation” also compels many uninformed property owners to sell their property to the government for a depressed value below “just compensation” due to the pressure of the impending taking. Or it may make it difficult for the owner to sell, lease, or even use the property.
The Constitutional Protection Against Unfair Burdens
In addition to the burden that directly falls upon the property owner, the Fifth Amendment’s guarantee of just compensation in eminent domain cases was designed to bar the government from forcing some individuals to bear burdens. In all fairness, they should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49 (1960).
When one person is asked to assume more than a “fair share” of the public burden, the payment of just compensation operates to redistribute that economic cost from the individual to the public at large. See United States v. Willow River Co., 324 U.S. 499, 502 (1945); Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893).
Therefore, the Constitution, and Supreme Court case law interpreting the same, demand that the cost of a governmental taking should be assumed by the public as a whole, especially since the property in question was taken for the public’s benefit (i.e., for “public use”).
Understanding Your Rights During Eminent Domain
In any event, the eminent domain process involves the exercise of one of the most awesome powers of government. City of Atlantic City v. Cynwyd Inv., 148 N.J. 55, 73 (1997). A condemnor must be mindful of its obligation to deal forthrightly and fairly with property owners subject to an involuntary taking of their property.
See State by Comm’r of Transp. v. D’Onofrio, 235 N.J. Super. 348, 353 (Law Div. 1989): “It must be remembered that the power to take property through eminent domain is one of the most intrusive aspects of sovereignty. Historically, land has been both the basis and symbol of wealth and still occupies a special place in our law. Real estate is also frequently irreplaceable because of its uniqueness. Thus, the state should not be heard to complain when the property owner seeks the fullest vindication of the rights of ownership.”
Property owners facing condemnation proceedings have the right to fight eminent domain actions that don’t meet constitutional requirements or fail to provide adequate compensation.
How We Help Property Owners Protect Their Rights
Our firm understands that the taking of private property has lasting and serious consequences for property owners. For over 55 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for persistently defending its clients’ property rights.
Working with an experienced eminent domain lawyer ensures you receive the full value of your property and understand all your legal options. Our firm has successfully handled a broad range of eminent domain cases involving almost every type of property. This includes commercial buildings, industrial properties, development land, single- and multi-family residential properties, hotels/casinos, oil/gas pipelines, water rights and beachfront property, airports, farmland, and many more.
Whether you need an eminent domain attorney New Jersey property owners trust or guidance on related matters such as finding a property tax lawyer NJ residents rely on, we provide comprehensive legal representation.
Conclusion
The government’s power to take private property through eminent domain represents one of the most significant intrusions into individual property rights. While this authority exists for legitimate public purposes, property owners deserve full constitutional protection and fair compensation. Understanding your rights and working with experienced legal counsel can make the difference between accepting an inadequate offer and receiving true just compensation for your property.
If you are confronted with the threat of eminent domain, please feel free to contact us for a free consultation.
