How Does Eminent Domain Work?

how does eminent domain work

While many people have heard of “eminent domain,” most do not fully know what it is or how it works. Across the Midwest, our wide-open spaces, with their plethora of natural resources and acres of undeveloped land, make eminent domain a particularly relevant issue. This complex legal doctrine affects many who own property, and it is important to understand just how eminent domain works fully.

Federal vs. State Powers of Eminent Domain

The federal government has the authority to take land from private citizens to add to the country’s infrastructure. This may be done to furnish property for schools, roads, and border walls, among other such items. When it engages in this action, the government is legally required to fairly compensate those from whom it is taking land.

The Fifth Amendment of the U.S. Constitution contains a clause that states, “nor shall private property be taken for public use, without just compensation.” This means the federal government can take your land and begin building on it as long as they pay you for it, eventually. Unfortunately, the process of getting a fair amount of compensation quickly can be a tremendous challenge for some landowners.

The power to take lands at the local and state level is a bit more limited, as state officials have enacted policies to protect landowners. The Texas Constitution addresses eminent domain in Article I, Section Seventeen, and provides that property may not be taken, damaged, or destroyed for public use without payment of just compensation. Hence, landowners should be aware their property can be taken.

The Elements of Eminent Domain in Texas

As mentioned, Texas law requires that the entity claiming eminent domain must have the legal authority to take the property for public use and must compensate the original owner fairly. Let’s examine each of these elements more closely.

Legal Authority to Eminent Domain

In Texas, only government entities or those authorized by a government entity have the right to exercise eminent domain. Authorization is given through a two-thirds vote in both houses of the state legislature. The request for the right to exercise eminent domain must be accompanied by detailed explanations of the intention for the property’s use, how the valuation is calculated, and how the public will be served by the new purpose of the property.

The right to eminent domain may be granted to entities such as utility companies, groundwater conservation districts, or common carriers for pipelines. In Texas, common carriers can be a cause for concern since they are defined as someone who owns or operates a pipeline used to transport petroleum products, carbon dioxide, liquified minerals, or similar materials. These are not always public entities but may be private companies that can argue a public use while also using the land to further their business interests. Whether these are for the public good or not must be decided by the Texas legislature before they grant the right to eminent domain.

The Texas Comptroller’s Office oversees a database listing all currently approved entities with the legal authority of eminent domain.

Public Use

Understanding and defining “public use” can be complicated. Property must be used for the public good or in service of infrastructure that will serve the community. Examples of these uses include oil and gas pipelines, shopping centers, stadiums, schools, hospitals, parks, airports, and water reservoirs.

The property in question may be simply an easement of a few feet to widen a road, or it could extend to an entire piece of land, including its buildings. The entity exercising eminent domain must clearly define its intentions and requirements so the court can decide whether to grant the property condemnation.

The public use element is critical, although the use does not have to be limited to the immediate community. Land can be claimed for county, state, or even federal use, depending on the circumstances. However, there are clear precedents against land being condemned by a public entity to then sell to a private party. If you suspect this is happening with your property, you may need to speak with an eminent domain attorney to investigate your case.

Paying the Landowner Adequate Compensation

The definition of “adequate” depends on a lot of factors, some of them fair to the landowner and some which are not. The government or other entity will often make a low offer initially in the hopes of clearing up the agreement quickly. Landowners under pressure to vacate their property may have already experienced a lot of interaction with the entity and be tired of the situation.

However, if the landowner works with a qualified attorney whose practice is focused on eminent domain and condemnation disputes, they may get a better price and get it faster. The government and other entities may set arbitrary deadlines meant to frustrate the owner. On the other side, once the owner accepts an offer and moves, the other party may delay making the payment or try to dispute the terms of the agreement.

Eminent Domain Lawyers

Like any contract or business agreement, an eminent domain offer can be full of language meant to confuse or trick the landowner. Without the assistance and advice of a skilled attorney who understands business disputes and condemnation procedures, you could end up with less than your property is worth. Remember, the government or public entity is not on your side.

An eminent domain attorney can examine every detail of your case and explain your legal rights as a landowner. Each case is unique and deserves exceptional attention to detail to ensure your land is valued appropriately. Your attorney can then negotiate the condemnation offer for you and represent you if needed in the legal process that follows.

If a reasonable amount is not offered after negotiations, the resulting disputes are first sent to a special commission that will decide the fair terms of the condemnation. If neither party can reach an agreement after the commissioners make a determination, your attorney can fight for your rights in court.

Speak With an Eminent Domain Attorney in Texas Today

If the government is trying to take your land without offering fair compensation or delaying your compensation, we are ready to assist you with understanding your offer and strengthening your legal position. Our condemnation attorneys will manage the legal complexities for you and reduce your burden so you can focus on the other aspects of your personal and professional life.

Our team of condemnation attorneys is very familiar with all aspects of the Texas condemnation process, from the time your property is selected through litigation, if necessary. We are dedicated to fighting for the rights of landowners, making it our goal to get the best value for your property possible. We evaluate every detail of your case and will fight for your rights in court.

No matter where you are in the process of having your land claimed through eminent domain, do not hesitate to speak with one of our highly qualified lawyers. We are ready to discuss your situation and create a tailored approach for your specific needs. Contact us to schedule a consultation today.

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Talk to a member of our legal team today. We are Board Certified in Oil, Gas and Mineral Law; Civil Trial Law; and Personal Injury Trial Law by the Texas Board of Legal Specialization. We have won awards including Texas Super Lawyers Rising Stars in Energy & Natural Resources and Texas Super Lawyers in General Litigation and Personal Injury. Many of us are rated AV Preeminent by Martindale-Hubbell – the highest possible rating for ethics and skill in our industry. All communication is kept confidential and private.