The government wants your property for a highway, park, or development project. While you can’t simply refuse eminent domain, you have significant rights—especially regarding compensation. If the government’s offer is too low, you can fight for fair payment. Understanding your options is essential to protecting your property rights.
Quick Answer
Yes, you can challenge the government in eminent domain cases—though stopping the taking entirely is difficult. Your strongest recourse is usually challenging the amount of compensation offered. The Fifth Amendment guarantees “just compensation” for property taken for public use. If the government’s offer is below fair market value, you can negotiate, appeal administratively, or go to court.
Understanding Eminent Domain
What Is Eminent Domain?
The government’s power to take private property for public use, provided it pays “just compensation.” This power exists at federal, state, and local levels.
Constitutional Protections
The Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.”
Two Requirements
- Public use: The taking must serve a public purpose
- Just compensation: You must be paid fair market value
What Can You Challenge?
1. The Amount of Compensation (Most Common)
Challenges to compensation are often successful. You can argue:
- The government’s appraisal undervalues your property
- Unique features weren’t considered
- Comparable sales support a higher value
- Business value or improvements were ignored
2. Whether It’s Really “Public Use”
Harder to win, but possible if:
- The taking primarily benefits private parties
- The stated public purpose is a pretext
- There’s no genuine public benefit
Note: The Supreme Court’s Kelo v. City of New London (2005) broadly defined “public use,” making these challenges difficult. Some states have passed laws limiting private-to-private transfers.
3. Procedural Violations
- Government failed to follow required procedures
- Notice requirements weren’t met
- Appraisal process was flawed
What Is “Just Compensation”?
Fair Market Value
The amount a willing, informed buyer would pay a willing seller in an arm’s-length transaction. This considers:
- Property’s current condition
- Highest and best use
- Comparable sales
- Income potential (for commercial property)
Partial Takings
When the government takes only part of your property:
- Value of portion taken PLUS
- Severance damages: Loss in value to the remaining property
What May NOT Be Compensated
- Sentimental value
- Moving expenses (some states do provide these)
- Lost business goodwill (varies by state)
- Inconvenience and emotional distress
The Eminent Domain Process
- Government identifies need: Determines property is necessary for project
- Appraisal: Government appraises your property
- Initial offer: You receive a written offer
- Negotiation: You can negotiate for higher compensation
- Condemnation lawsuit: If no agreement, government files in court
- Hearing/Trial: Court determines just compensation
- Payment and transfer: Government pays; title transfers
Inverse Condemnation
Sometimes the government effectively takes property without paying:
- Uses your property without formal condemnation
- Regulations eliminate all economic value
- Government action permanently floods your land
- Flight path over your property makes it unusable
You can sue to force the government to pay just compensation for this “regulatory taking.”
Strategies to Maximize Compensation
Get Your Own Appraisal
- Hire an independent, qualified appraiser
- Look for one experienced in condemnation cases
- A different appraisal methodology may yield higher value
Document Everything
- Property improvements and investments
- Income generated (for commercial properties)
- Unique features affecting value
- Development potential
Challenge the Government’s Appraisal
- Question comparable sales used
- Highlight factors they overlooked
- Point out errors in methodology
Consider Total Impact
- Severance damages to remaining property
- Access changes affecting value
- Loss of parking, signage, or visibility
- Construction disruption during project
When the Government Takes Your Home
Relocation Assistance
Federal law (Uniform Relocation Assistance Act) requires:
- Moving expenses
- Replacement housing payments
- Rental assistance
- Advisory services
Special Considerations
- Elderly and disabled homeowners may receive additional assistance
- Business owners may be entitled to business relocation payments
- Farm operations may qualify for special provisions
Frequently Asked Questions
Can I refuse to sell my property to the government?
Not ultimately. The government’s eminent domain power allows it to take private property for public use as long as it pays just compensation. You can negotiate and challenge compensation, but you cannot permanently block a legitimate taking.
How do I know if the offer is fair?
Get an independent appraisal. The government’s offer is often conservative. An experienced appraiser or eminent domain attorney can tell you if the offer undervalues your property.
Do I need a lawyer?
For significant property or if you believe compensation is inadequate, yes. Eminent domain attorneys often recover thousands more than the initial offer. Many offer free initial consultations to evaluate whether your case is worth pursuing.
What if I already signed something?
Be careful what you sign. Some documents waive rights. If you’ve signed, consult an attorney immediately to understand what options remain.
How long does the process take?
Varies widely. Negotiated settlements can resolve in months. Contested cases going to trial can take years.
State Variations
After Kelo, many states passed laws limiting eminent domain:
- Stricter “public use” requirements
- Bans on takings primarily for private development
- Enhanced compensation requirements
- Additional procedural protections
Your state’s specific laws matter significantly.
When to Contact a Lawyer
Consider consulting an eminent domain attorney if:
- You received notice of a potential taking
- The government’s offer seems too low
- Your property has unique characteristics affecting value
- Only part of your property is being taken
- The taking will significantly impact your business
- You believe the taking isn’t truly for public use
- The government is using your property without paying
Many eminent domain attorneys offer free evaluations and work on contingency or for a percentage of the additional compensation obtained. Given the stakes and complexity, professional representation is usually worthwhile.
