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Real Estate Law 102: How does eminent domain works?The process by which the government takes the property of private owner is known as eminent domain. Basically eminent domain is perceived as a power of government, through this power government can take private land for public use. However it is compulsory for the government to compensate the property owner for the lack. This power of government is limited and can only be used for public which is clearly stated in the constitution. The law of eminent domain is derived from the Takings clause, which stated that the private property cannot be used without just compensation. So in this way the founders of eminent domain limited the power of government to take private property.
With growing population, government also increase their control on use of land. The landowners began to argue with the government that taking of their private property damage the real value and use of their property and facilitate them with fair compensation. So this adds a new element in the law of eminent domain, that the government must compensate the owner for the property taken.
The chief components of Takings clause are:
It applies only to private property. It means if government plan to construct a road on what had been a park then in this case government will not pay any citizen who used to visit the park. However if this construction interfere with the rights of neighboring landowners then they can sue.
The land is taken for public use only. This restricts the government members to take the private land for their own use.
The other main component of Taking Clause is just compensation. Fair compensation is determined through the process of valuation. It depends on various factors such as size, location and market value of property.
The Process of Eminent Domain:
In the case of eminent domain the government first identifies the land to be taken then notify the owner. The government appoints an appraiser who will evaluate the compensation for the land to be taken. This process of valuation involves various factors such as the size, use and location of land, its present value in the market. Then government offers the landowner a compensation amount. If the land owner disagrees to the compensation offered by the government then it is called condemnation proceeding. Property owner has the legal right to respond the government’s notice.
After the compensation is agreed from both parties, the taking of land is finalized. The transaction occurred and the landowner leaves the property. However if the owner is not satisfied with the amount offered by the government, in this case they can claim that the matter be decided in court. If it is determined that the compensation offer by the government is low, then the government will pay the attorney fees.
It is always better to consult an experienced attorney for legal advice. In case of property taking seek help of local attorney experienced in eminent domain.
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