Can the government take my land?

On Behalf of | Sep 12, 2022 | Land Use Law, Legal Issues & Procedures

There are few assets more precious here in Oregon than owning a piece of property. However, the federal government, state agencies, cities, counties, departments or municipal corporations may attempt to seize the land to build or expand a road, create a park, or build necessary infrastructures like pipelines or powerlines. It will likely involve the need to remove structures or create public access points.

Under certain circumstances, eminent domain empowers the government entity to take the privately owned property, even if the owner doesn’t want to sell. This action falls on the “Takings Clause” of the U.S. Constitution’s Fifth Amendment. It is justified because taking the property serves the community’s best interests. However, the owner has the right to fight back by disputing the government’s need for the property or that the owner was not adequately compensated for the property.

As with everything else involving government actions, eminent domain involves a process. The details will vary by governing body, but there are three basic steps.

Step 1: Issuing a notice

The government starts the process by issuing a notice to the owner. The notice will describe the piece of property involved, which may be just a portion of a lot or the entire parcel. It will also include the amount it intends to pay for the property – they are constitutionally required to pay the owner “just compensation” for the property. This amount should be fair market value. The owner can accept the offer, try to negotiate a higher and more equitable price or fight the claim. Ideally, the two sides can work out a deal.

Step 2: the hearing

If the government and owner can’t reach an agreement, the government moves forward with a procedure for condemnation. This step involves a judge, jury or commission listening to each side. The property owner will likely use a lawyer and may hire an appraiser who offers a professional opinion on the property’s value. The landowner’s team may argue:

  • The government is asking for a larger-than-necessary piece.
  • The government’s actions will substantially devalue the adjoining property that the landowner still owns.
  • The government doesn’t need the property.

Step 3: Valuing the property

The government may meet all the criteria for legally seizing the land under eminent domain. The owner is then offered “just compensation” or reasonable market value. At this point, the only thing stopping the process is the court determining that government doesn’t legitimately need the land.

It’s crucial to get help

The attorney, as mentioned earlier, will be an essential part of nearly any successful eminent domain challenge. Rather than ignoring the notice and hoping it goes away, property owners should immediately assemble a team to help protect their rights as the landowner.