When Can the State Take Land Through Eminent Domain?


What is eminent domain? Eminent domain is the power of a local, state, or federal government to claim private property for public use, provided the government pays just compensation to the owners of the property. You may have heard the term used in recent news stories, such as those involving the Keystone XL pipeline or the Trump Administration’s proposed border wall. Public uses that a government can seize property may include things like schools, libraries, roads, police stations, fire stations, and other similar structures.

For a government agency to exercise its power of eminent domain, it must draft a formal resolution called a resolution of necessity. This resolution must then be adopted at a public hearing before the agency can bring an eminent domain action to court.

For a resolution of necessity to be adopted, the agency must find:

  1. The project to take ownership of a building for public use is necessary
  2. The property is necessary for a public project
  3. The project will provide great public benefit while minimizing private detriment
  4. That an offer has been made to purchase the property

Before court proceedings can begin, an appraisal of the property must be conducted by the agency and the agency has proof of a record of real property offered to the owners. Property owners are not required to accept the offer and are allowed to counter-offer.

If a court action proceeds and a settlement cannot be agreed upon, a jury will determine the fair market value of the subject property. Should the government agency succeed in an eminent domain action, the government has 30 days to pay.