Eminent domain
Eminent domain, also known as land acquisition, compulsory purchase, resumption, resumption/'compulsory acquisition, or expropriation', is the compulsory acquisition of 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. This power can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized 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 had 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.
Africa
Zimbabwe
In the 1980's, 4400 white Rhodesians owned 51% of the country's land while 4.3 million black Rhodesians owned 42%, with the remainder being non-agricultural land. Since the 1990s, the Zimbabwean government under Robert Mugabe has compulsory purchased a great deal of land and homes of mainly white farmers in the course of the land reform movement in Zimbabwe. The government argued that such land reform was necessary to redistribute the land to Zimbabweans dispossessed of their lands during colonialism. Compensation has been delayed, though in 2022 the Zimbabwean government agreed to pay US$3.5 billion in compensation to farmers who lost their land during land reform.Asia
China
In China, "requisitions", the Chinese form of eminent domain, are constitutionally permitted as necessary for the public interest, and if compensation is provided. The 2019 Amendment of the Land Administration Law of China spells out rather detailed guidelines, guaranteeing farmers and those displaced greater financial security.India
The Constitution of India originally provided for the Fundamental Right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to "acquire, hold and dispose of property". Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been "taken possession of or acquired" for public purposes. In addition, both the state government as well as the union government were empowered to enact laws for the "acquisition or requisition of property". It is this provision that has been interpreted as being the source of the state's "eminent domain" powers.The provisions relating to the right to property were changed a number of times. The 44th amendment of 1978 deleted the right to property from the list of Fundamental Rights. A new article, Article 300-A, was added to the constitution to provide, "No person shall be deprived of his property save by authority of law." Thus, if a legislature makes a law depriving a person of his property, it will not be unconstitutional. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
Land acquisition in India is currently governed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which came into force on 1 January 2014. Until 2013, land acquisition in India was governed by Land Acquisition Act of 1894. However the new LARR ordinance 31 December 2014 diluted many clauses of the original act.
The liberalisation of the economy and the Government's initiative to set up special economic zones have led to many protests by farmers and have opened up a debate on the reinstatement of the fundamental right to private property.
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 the European Court of Human Rights 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 with the Nazi occupier, the Renault company was expropriated from Louis Renault posthumously and nationalised as Régie Nationale des Usines Renault, without compensation.
Germany
The Basic Law for the Federal Republic of Germany states in its Article 14 that "an expropriation is only allowed for the public good" and just compensation must be made. It also provides for the right to have the amount of the compensation checked by a court.Italy
Esproprio – or more formally espropriazione per pubblica utilità – in Italy takes place within the frame of civil law, as an expression of the potere ablatorio. The law regulating expropriation is the D.P.R. n.327 of 2001, amended by D.Lgs. n.302 of 2002; it supersedes the old expropriation law, the Royal Decree n.2359 of 1865. Also other national and regional laws may apply, not always giving full compensation to the owner. Expropriation can be total or partial; permanent or temporary.The article 42 of the Italian Constitution and the article 834 of the Italian Civil Code state that any private goods can be expropriated for public utility. Furthermore, the article 2 of the Constitution binds Italian citizens to respect their "mandatory duties of political, economic and social solidarity".
The implementation of the eminent domain follows two principles:
- legality: a public institution can expropriate private goods only in the cases law allows it and respecting its procedures ;
- compensation: the State must provide a certain amount of money as compensation, which is determined by law. According to the Italian Constitutional Court, this compensation is not required to be equal to the market value of the expropriated good, although this sum must not be merely symbolic.