Eminent Domain FAQ

Eminent domain is the power of the government to take private property for a "public use" so long as the property owner is paid "just compensation." The decision to acquire private property for a public project is to be made by the condemning agency only after a thorough review of the project, which typically includes public hearings. Condemnation is the eminent domain process.

A "public use" is a use that confers public benefits, like providing public services or promoting public health, safety, and welfare. Public uses include a wide variety of projects such as street improvements, construction of water pipelines or storage facilities, construction of civic buildings, watercourse improvements to increase flood protection, and redevelopment of blighted areas.

There has been much public debate over the "public use" requirement for public projects, particularly in the context of redevelopment. As the law currently stands, taking private property from one owner and transferring it to another private owner does NOT mean that it is not a public use. However, the taking and transfer must be for the purpose of eliminating blight.

Just compensation is the fair market value of the property being acquired by the agency. California Law defines fair market value as "the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available."

Inverse Condemnation refers to a lawsuit brought by a business or property owner claiming that an agency with the power to use eminent domain has taken or damaged the business or property without going through the proper procedure or paying just compensation.

Like most lawsuits, you are responsible for your own attorney fees and expenses. Under certain circumstances the agency will reimburse you for your costs. The only way to have your attorney fees paid for by the agency requires a jury trial that results in your favor and an unreasonable pre-trial offer by the agency. Our firm works with owners to develop a fee agreement that works best for the owner and the firm. Our fees range from full hourly rates to pure contingent fees, with a number of choices for blended rates everywhere in between.

Each party is responsible for their own appraiser and other expert fees. If the condemning agency is a public entity, the agency must pay up to $5,000 towards the owner’s reasonable appraisal costs.

Yes! An agency must meet and be able to prove certain factual and procedural prerequisites to taking property by eminent domain. However, there are procedures that an owner must follow very early in the process to preserve the right to challenge the taking.

No. When considering the fair market value and related just compensation, appraisers look to all of the uses to which a property can be put, not just its use at the time of the condemnation. The goal is to determine the highest and best use of the property. This may even include uses that require changes in zoning or permitted land uses.

There are generally three ways to resolve and eminent domain dispute. Challenge the agency’s right to acquire your property, negotiate an agreed price, or litigate the issue of value which will be determined by a jury. Each parcel of property is unique and each business is unique. Similarly, the best strategy for every client is based on the specific facts. No single strategy fits all. For a look at the step-by-step process, click here