Eminent domain


Eminent domain, land acquisition, compulsory purchase, resumption, resumption/compulsory acquisition, or expropriation is the power of a state, provincial, or national government to take private property for public use. It does not include the power to take and transfer ownership of private property from one property owner to another private property owner without a valid public purpose. However, this power can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized by the legislature to exercise the functions of public character.
The most common uses of property taken by eminent domain have been for roads, government buildings and public utilities. Many railroads were given the right of eminent domain to obtain land or easements in order to build and connect rail networks. In the mid-20th century, a new application of eminent domain was pioneered, in which the government could take the property and transfer it to a private third party for redevelopment. This was initially done only to a property that has been deemed "blighted" or a "development impediment", on the principle that such properties had a negative impact upon surrounding property owners, but was later expanded to allow the taking of any private property when the new third-party owner could develop the property in such a way as to bring in increased tax revenues to the government.
Some jurisdictions require that the taker make an offer to purchase the subject property, before resorting to the use of eminent domain. However, once the property is taken and the judgment is final, the condemnor owns it in fee simple, and may put it to uses other than those specified in the eminent domain action.
Takings may be of the subject property in its entirety or in part, either quantitatively or qualitatively.

Meaning

The term "eminent domain" was taken from the legal treatise De jure belli ac pacis, written by the Dutch jurist Hugo Grotius in 1625, which used the term dominium eminens and described the power as follows:
The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property.

The exercise of eminent domain is not limited to real property. Condemnors may also take personal property, even intangible property such as contract rights, patents, trade secrets, and copyrights. Even the taking of a professional sports team's franchise has been held by the California Supreme Court to be within the purview of the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.
A taking of property must be accompanied by payment of "just compensation" to the owner. In theory, this is supposed to put the owner in the same position that he would have been in had his property not been taken. But in practice courts have limited compensation to the property's fair market value, considering its highest and best use. But though rarely granted, this is not the exclusive measure of compensation; see Kimball Laundry Co. v. United States and United States v. Pewee Coal Co.. In most takings owners are not compensated for a variety of incidental losses caused by the taking of their property that, though incurred and readily demonstrable in other cases, are deemed by the courts to be noncompensable in eminent domain. The same is true of attorneys' and appraisers fees. But as a matter of legislative grace rather than constitutional requirement some of these losses have been made compensable by state legislative enactments, and in the U.S. may be partially covered by provisions of the federal Uniform Relocation Assistance Act.

North America

United States

Most states use the term eminent domain, but some U.S. states use the term appropriation or expropriation as synonyms for the exercise of eminent domain powers. The term condemnation is used to describe the formal act of exercising this power to transfer title or some lesser interest in the subject property.
The constitutionally required "just compensation" in partial takings is usually measured by fair market value of the part taken, plus severance damages. Where a partial taking provides economic benefits specific to the remainder, those must be deducted, typically from severance damages. The former owners of the property will rarely receive full market value because some elements of value are deemed noncompensable in eminent domain law.
The practice of condemnation came to the American colonies with the common law. When it came time to draft the United States Constitution, differing views on eminent domain were voiced. The Fifth Amendment to the Constitution requires that the taking be for a "public use" and mandates payment of "just compensation" to the owner.
In federal law, Congress can take private property directly by passing an Act transferring title of the subject property directly to the government. In such cases, the property owner seeking compensation must sue the United States for compensation in the U.S. Court of Federal Claims. The legislature may also delegate the power to private entities like public utilities or railroads, and even to individuals. The U.S. Supreme Court has consistently deferred to the right of states to make their own determinations of "public use".

Canada

In Canada, expropriation is governed by federal or provincial statutes. Under these statutory regimes, public authorities have the right to acquire private property for public purposes, so long as the acquisition is approved by the appropriate government body. Once a property is taken, an owner is entitled to "be made whole" by compensation for: the market value of the expropriated property, injurious affection to the remainder of the property, disturbance damages, business loss, and special difficulty relocating. Owners can advance claims for compensation above that initially provided by the expropriating authority by bringing a claim before the court or an administrative body appointed by the governing legislation.

Europe

In many European nations, the European Convention on Human Rights provides protection from an appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home, and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions." Again, this is subject to exceptions where state deprivation of private possessions is in the general or public interest, is in accordance with law, and, in particular, to secure payment of taxes. Settled case-law of ECHR provides that just compensation has to be paid in cases of expropriation.

France

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation; and a déclaration d'utilité publique is commonly required, to demonstrate a public benefit.
Notably, in 1945, by decree of General Charles de Gaulle based on untried accusations of collaboration, the Renault company was expropriated from Louis Renault posthumously and nationalised as Régie Nationale des Usines Renault—without compensation.

England and Wales

After his victory in 1066, William the Conqueror seized virtually all land in England. Although he maintained absolute power over the land, he granted fiefs to landholders who served as stewards, paying fees and providing military services. During the Hundred Years War in the 14th century, Edward III used the Crown's right of purveyance for massive expropriations. Chapter 28 of Magna Carta required that immediate cash payment be made for expropriations. As the king's power was broken down in the ensuing centuries, tenants were regarded as holding ownership rights rather than merely possessory rights over their land. In 1427, a statute was passed granting commissioners of sewers in Lincolnshire the power to take land without compensation. After the early 16th century, however, Parliamentary takings of land for roads, bridges, etc. generally did require compensation. The common practice was to pay 10% more than the assessed value. However, as the voting franchise was expanded to include more non-landowners, the bonus was eliminated. In spite of contrary statements found in some American law, in the United Kingdom, compulsory purchase valuation cases were tried by juries well into the 20th century, such as Attorney-General v De Keyser's Royal Hotel Ltd.
In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is used. The landowner is compensated with a price agreed or stipulated by an appropriate person. Where agreement on price cannot be achieved, the value of the taken land is determined by the Upper Tribunal. The operative law is a patchwork of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, the Compulsory Purchase Act 1965, the Land Compensation Act 1973, the Acquisition of Land Act 1981, part IX of the Town and Country Planning Act 1990, the Planning and Compensation Act 1991, and the Planning and Compulsory Purchase Act 2004.