Eminent Domain (Expropriation) :: Birth Injury, Cerebral Palsy, Brain Damage, Erb's Palsy and Eminent Domain Law Practice in Puerto Rico.

 
Expropriation is the act of taking possession of an item of property from its owner in exchange for little or no compensation and irrespective of the wishes of the original owner. The term is used to both refer to acts by a government or by any group of people.
 
Expropriation is the act of a public authority (such as federal, provincial, municipal governments or other bodies empowered by statute) taking property without the consent of an owner through a statutory or common law process. This process involves the payment of compensation to the owner by the authority and the owner having the right to claim additional compensation to be determined by the courts or an administrative board. Compensation is intended to make the owner whole, in light of the loss suffered. The term is the U.S. equivalent to the power of eminent domain.
 
It is commonly referred to as the act of removing property from an owner especially by public authority - for example, expropriated the property owners who lived in the path of the new highway. Conversely, acts of expropriation may be warranted for a variety of reasons, peculiar to the local governmental entity. Sometimes, for instance, the expropriated business owners pay little or no attention to the host country's assertion that royalty payments are too small relative to the resources being extracted from the host country. Some host country political complaints may relate to the treatment of its nationals as employees of the business. At other times, the host government may judge that strategic decisions about the business entity are simply wrong-headed and ill-advised, as applied to the host country, however right they may seem to the owners. Such judgments may also occur when the business entity fails to include the host countrys interests and concerns, legitimate or not, as matters of ordinary consultation and effective participation in the operational plans of the business entity.

What is Eminent Domain

Eminent domain refers to the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use. In some jurisdictions, the state delegates eminent domain power to certain public and private companies, typically utilities, such that they can bring eminent domain actions to run telephone, power, water, or gas lines. In most countries, including the United States under the Fifth Amendment to the Constitution, the owner of any appropriated land is entitled to reasonable compensation, usually defined as the fair market value of the property. Proceedings to take land under eminent domain are typically referred to as "condemnation" proceedings.

The Process of Eminent Domain

Eminent domain law and legal procedures vary, sometimes significantly, between jurisdictions. Usually, when a unit of government wishes to acquire privately held land, the following steps (or a similar procedure) are followed:The government attempts to negotiate the purchase of the property for fair value.
  • If the owner does not wish to sell, the government files a court action to exercise eminent domain, and serves or publishes notice of the hearing as required by law.
  • A hearing is scheduled, at which the government must demonstrate that it engaged in good faith negotiations to purchase the property, but that no agreement was reached. The government must also demonstrate that the taking of the property is for a public use, as defined by law. The property owner is given the opportunity to respond to the government's claims.
  • If the government is successful in its petition, proceedings are held to establish the fair market value of the property. Any payment to the owner is first used to satisfy any mortgages, liens and encumbrances on the property, with any remaining balance paid to the owner. The government obtains title.
  • If the government is not successful, or if the property owner is not satisfied with the outcome, either side may appeal the decision.

Takings

There are several types of takings which can occur through eminent domain:

Fair Value

Fair value is usually considered to be the fair market value - that is, the highest price somebody would pay for the property, were it in the hands of a willing seller. The date upon which the value is assessed will vary, depending upon the governing law. If the parties do not agree on the value, they will typically utilize appraisers to assist in the negotiation process. If the case is litigated, both sides will ordinarily present expert testimony from appraisers as to the fair market value of the property.
 

Just Compensation

At times, fair value includes more than the price of an item of property or parcel of real estate. If a business is operating from the condemned real estate, the owner is ordinarily entitled to compensation for the loss or disruption of the business resulting from the condemnation. In a minority of jurisdictions, the owner may also be entitled to compensation for loss of "goodwill", the value of the business in excess of fair market value due to such factors as its location, reputation, or good customer relations. If the business does not own the land, but leases the premises from which it operates, it would ordinarily be entitled to compensation for the value of its lease, for any fixtures it has installed in the premises, and for any loss or diminishment of value in the business.
 
 

Public Use

Ordinarily, a government can exercise eminent domain only if its taking will be for a "public use" - which may be expansively defined along the lines of public "safety, health, interest, or convenience". Perhaps the most common example of a "public use" is the taking of land to build or expand a public road or highway. Public use could also include the taking of land to build a school or municipal building, for a public park, or to redevelop a "blighted" property or neighborhood.
 

Abuses of Eminent Domain

In recent decades there has been growing concern about the manner in which some states and units of government exercise their power of eminent domain. Some governments appear inclined to exercise eminent domain for the benefit of developers or commercial interests, on the basis that anything that increases the value of a given tract of land is a sufficient public use. Critics respond that this is absurd, and that there are few properties, no matter how upscale, which could not be made more valuable if developed in a different manner. They also note that if a developer is unable to purchase the property on the open market, it is unlikely that the landowners will truly be offered the value of the property through condemnation proceedings. The governmental response to that point is that the law of eminent domain arose from the experience that some property owners are unwilling to negotiate a reasonable sale price, and such unreasonableness should not provide a basis to extort an above-market price or to prevent the completion of a public project.