Talk of condemnation and eminent domain are standard for most attorneys, but they are not as well understood by the general public. This is due in part to the multiple definitions of condemnation. The most widely accepted explanation of this term is generally the declaration of something as reprehensible or wrong, or the declaration of something as unfit for use.

However, when it comes to condemnation and eminent domain and their relation to each other in the legal sphere, the definition rings a little different.

The Basics of Condemnation and Eminent Domain

The power of eminent domain is the government’s right to take private property that is intended for public use. In this scenario, condemnation describes the process by where a government agency can utilize the power of eminent domain.

Condemnation and eminent domain have long been an issue in American history as the country has grown and required modifications of land for the people who live on and around it. For example, as a form of condemnation, the government may need a particular piece of property to:

  • build or expand a public road
  • enact measures for flood control
  • perform infrastructure work such as building a school

Under the lens of eminent domain, the government does have the power to take property used for public use, but both the federal constitution and state laws require fair compensation be paid to the landowner. Specifically, the United States Constitution features the Takings Clause, which stipulates that the government cannot take property without providing just compensation to the owner.

As you might imagine, there is not always an agreement as to what constitutes as fair. For this reason, it is not uncommon to have hearings and disputes with the government over the property’s land value and the amount being paid for it. Contrary to what you may think, there does not have to be a final determination of just compensation before the government may take possession of the property.

Many times, the property is already in the process of public use while the parties are still debating the land value. As explained below, the parties can agree to government use of the property while the fair value is later determined in hearings and appeals.

The Main Steps in Condemnation and Eminent Domain

There are two main steps that must happen in a condemnation and eminent domain case:

  1. Determining if the land in question is required for public use
  2. Determining how much the property is really worth

When it comes to confirming land is indeed intended for public use, the government must indicate what they plan to use it for. Often in Texas, the government is serious about the process because it is needed to promote community safety via widening a road, expanding a landfill, or managing flood control.

However, there are instances in which someone could question the legitimacy of that public use. For example, if certain members of the government have become corrupt and abuse the process by taking land they do not need in the name of some political issue, it can be challenged. Proving corruption and an abuse of power can be an uphill battle. Another example might be if the government says they need six inches of a person’s land to widen a road. Six inches is not much; therefore, it may be questioned if there really is a proper “public use” argument. Yet, the landowner can be at a disadvantage in winning these cases if a safety issue is involved.

Once it has been established that the piece of property is indeed for public use, the next step is determining how much the land or property is effectively worth. This also includes consideration of how much the taking of that land might reduce the value of any remaining land on the property.

For instance, taking six inches out of a person’s front yard can be relatively minor in comparison to the size of the yard left behind.  However, if it is proposed that 20 feet be taken out of a front yard, it could mean that the property will no longer have much of a yard at all, which in turn can significantly affect the value of the house. In situations like this one, the government may be forced to take an entire lot even though they only need 20 feet of it solely because of the damage it will do to the remaining lot.

The Sometimes-Unusual Timeline for Condemnation and Eminent Domain

Although some might think the process of condemnation and eminent domain would be linear, there are times when it is not.

Once both parties have agreed that they are not going to challenge the public necessity of the property, a special commissioner’s group may convene and determine the initial price they will offer for the property.

At this point, the government can go ahead and begin clearing and using the land for the intended public use even though there may still be quibbling over the price.

For example, the original value determination may be $5 per square foot. It is possible that the landowner could find an appraiser to testify that the property is actually worth $8 per square foot. Should this be proven in a court of law within the county of the property, the landowner might end up making more money than previously thought. That said, if during the litigation it comes out that the property is actually only worth $4 per square foot instead of $5, the landowner will likely lose that extra dollar per square foot.

However, in most cases there tends to be a settlement that ends up being somewhere between the initial offer and the new appraised price, which negates the need for litigation. Still, there are some cases that will go to court to determine the rightful value of the property.

If you have questions about condemnation and eminent domain, protect your rights by consulting with a reputable and experienced attorney.

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