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Eminent Domain – The Government’s Right to Take Your Property

Article contributed by John Paul Turner, Esq.

It may be hard to imagine, but that home you worked so hard to obtain can be taken by the government for the benefit of the greater good.

In fact, the power of eminent domain has been a fundamental part our of Constitution from the very beginning. Originally adopted by the American colonies from the common law, James Madison included as part of the Fifth Amendment the premise that “nor shall private property be taken for public use, without just compensation.” And, if you think about it, there would be no highways, schools, bridges or parks without the ability of our federal, state and local governments to acquire the real estate necessary to make those public projects a reality.

Condemnation is the legal process by which eminent domain is accomplished and every state has developed a unique set of statues and case law establishing the way in which your property can be taken. However, before any private property can be put to a public use the government agency involved must first prove their project is truly “public” and then establish the property they seek is “necessary” for that public use. Some cases like state highways and train corridors are more obvious public uses than say a convention center or shopping mall with quasi public/private investment. Ultimately, a judge will render a decision on the public use and necessity requirements of each case by examining the facts in evidence and the prior actions of the government in deeming your property necessary for their project.
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Inverse Condemnation

While the economic turmoil of the past few years made investors more aware of the pitfalls they may face when trying to build a secure financial future, few consider how their real estate holdings may be affected by a little-understood law called eminent domain. Asset protection strategies should not focus solely on the volatility of financial markets. Real estate value could be put at risk by government decisions that decrease the value of your land, but you may have recourse. Read more