This land is your land…until the government wants it!
First, let’s discuss that Eminent Domain refers to a fundamental power of the government to take private property for a public purpose without the owner’s consent. The power of eminent domain is incorporated in both the United States and California Constitution. Specifically, the Fifth Amendment to the United States Constitution prohibits the federal government from taking private property for public use without just compensation and the Fourteenth Amendment prohibits state government from condemning private property without due process of law. While Article 1, Section 19 of the California Constitution is considered the foundation of California’s eminent domain law, the state’s comprehensive eminent domain law is found in California Code of Civil Procedure.
Governmental Agencies have used Eminent Domain to seize houses, land, and businesses in order to provide for the “public good.” This may include building a park, road, and even parking lots. The most common reason is to build roads and streets since this is Southern California after all, and as such, we love our cars.
One of the most troublesome aspects of eminent domain for many owners is the fundamental fact that the owner does not get to decide whether to sell the property nor are they even included in the decision. Most client meetings began with the client asking “How do I stop this from happening?” Clients are generally disappointed to hear my blunt answer of “You can’t.” With that said there are actually several grounds for preventing the government from condemning property, however, most are more of a delay rather than prevention.
Recently some cities have expressed interest in using the eminent domain power to “seize” mortgages that are underwater. This would be a novel (albeit possibly impermissible) use of such power. With any great power comes great responsibility. Cities and governmental agencies must pay “reasonable value/just compensation” for any property taken from an owner. I know what you are thinking…”just compensation” seems ambiguous. It is! There lies the heart of the argument. The city says your property is worth X dollars and the owners states its worth X,Y,and Z dollars. If it was easy, we wouldn’t need lawyers. There is a large amount of case law that is used to determine value of the condemned property.
The use of eminent domain has slowed since the disbandment of “redevelopment agencies” which seemed to use eminent domain on a regular basis (since the money flowed into those agencies like water). However, with housing prices suppressed various governmental agencies are using this as an opportunity to use eminent domain to complete any outstanding projects while the prices are low.
Even though private property ownership is sacred in this great country it is not without limitations. The government can forcibly take your property, however, unlike some other countries you will be compensated which should provide you some peace of mind.
Jeremiah Raxter, Esq.
27851 Bradley Rd, STE 145
Menifee, Ca 92586