Condemnation

The term “condemnation” is used to define the situation wherein a local, state, or federal government seizes a citizen’s property, then compensates the owner for what was seized. An example of condemnation is a piece of property being condemned by the government due to a carbon monoxide leak. The owners of the property will be forced to move out, and the government will compensate them for the living arrangements the owners will be forced to make as a result. To explore this concept, consider the following condemnation definition.

Definition of Condemnation

Noun

1. The process whereby the government seizes private property, then reimburses the owner for what was taken.

Origin

1350-1400       Middle English

Condemnation Action

A condemnation action is taken when the government must seize a person’s private property. This power that the government has is known as “eminent domain,” and it is protected by the Fifth Amendment to the Constitution. The owner of the property does not have to give his permission for this to happen, though he is still entitled to a fair reimbursement for the property. The government can seize property for a variety of reasons. For example, condemnations take place when the government needs to build a school, road, or some other public building project.

Condemnation actions also occur when the government needs to seize someone’s property for private use. For instance, city governments may seize property in order to build an apartment complex. This type of thing happens during severe housing shortages. By performing this condemnation action, the government allows for more people to be housed in the area. In other situations, if the property has deteriorated to the point where it is not livable, the government may sell the property without first obtaining the approval of the property owner.

The Condemnation Process

The condemnation process may vary, depending on the situation at hand. However, most condemnation processes follow similar steps. First, upon the government’s decision to seize a piece of property, it must calculate a reasonable appraisal of the property’s value. This is called the fair market value of the property. Then, the government will offer the property owner what is called a “pro tanto” award. This is a partial payment that is made by the government to reimburse the owner for the seizure of his property.

If the owner does not want to sell the property, the government then files a lawsuit with the courts to exercise its eminent domain right. A hearing is then scheduled wherein the government must prove that the offer extended to the property owner was reasonable, and that the property is, in fact, being seized for the purpose of public use. The property owner is permitted to respond to these claims, and once the court makes a decision, the parties are entitled to an appeal if they are not happy with the result.

Eminent Domain

Eminent domain is a form of property acquisition that allows the government to exercise its power to force the sale of a private property for public use. The government then compensates the owner for the property that was taken. The term “eminent domain” is often used interchangeably with “condemnation.”

There are times when corporations, such as gas or oil companies, are permitted to act with eminent domain power so as to construct a project that ultimately benefits the public. In a condemnation, the government follows a particular process to acquire the property and to establish the amount of compensation that should be paid to the owner.

The Eminent Domain Process

The eminent domain process differs from state to state. Further, federal agencies may follow different policies from state agencies. There are, however, some basic steps that more or less remain the same throughout the eminent domain process. First, the government identifies a public project that requires the acquisition of private property. The government then notifies the property owner(s) that the property is going to be needed for this purpose.

Negotiations may then be made by the government to purchase the property, should the owner not accept the initial offer. If negotiations are unsuccessful, then the government will exercise its eminent domain and file a lawsuit to take over the property in exchange for just compensation to the owner. Depending on the procedures that are specific to the state where the suit is filed, an independent organization, a judge, or a civil jury will determine the amount of compensation that is due the owner.

The compensation awarded to a property owner may also include any damages that might have occurred to the property during the condemnation process. In some states, the property owner may also be entitled to recover fees associated with hiring an attorney or obtaining an appraisal. He may also be entitled to recover lost profits associated with his business being upended.

Inverse Condemnation

Inverse condemnation is another process by which private property can be taken from a property owner. In this case, the government simply takes the property; eminent domain procedures are ignored, and compensation is not provided to the property owner. If the government performs an inverse condemnation, then the property owner has the right to file a claim against the government to recover fair compensation for his property that was taken.

Inverse condemnation does not necessarily mean that the property has been permanently taken over. Instead, inverse condemnation can be used to temporarily seize a property but with governmental regulations that burden the property to the point that the owner cannot derive any reasonable use from it.

For example, inverse condemnation may be invoked when a property has become flooded. The government may take over the property during this time and place such restrictions on the property while repairs are being made that the owner cannot use it whatsoever. What is most important to remember about an inverse condemnation is that in this scenario, the government has failed to pay just compensation for the private property it has seized.

The Inverse Condemnation Process

When the government takes a parcel of private property without invoking the eminent domain process, then the property owner is entitled to bring an inverse condemnation lawsuit against the government for taking his property. The suit is referred to as an “inverse” suit, as opposed to a “direct” suit, because it is brought by the property owner, rather than by the government agency that has the eminent power. Therefore, it is up to the property owner to prove that the rights to his property were acquired without the payment of just compensation.

Inverse condemnation differs from a direct condemnation in that in the latter, it is up to the entity condemning the property to prove that the acquisition is necessary and that the owner has been justly compensated. As with direct condemnation, the process involved with inverse condemnation may differ depending on the state in which the lawsuit is brought. There may also be different statutes of limitations associated with inverse condemnations.

Condemnation Example Involving a Redevelopment Plan

An example of condemnation that was brought before the Supreme Court was the first major case concerning eminent domain to be heard by the Court since 1984. Here, a condemnation of private property took place so that the property could be used as part of a “comprehensive redevelopment plan.” However, the developer of the property was unable to secure financing for the project and abandoned the redevelopment, leaving the land undeveloped and empty.

Susette Kelo, one of the original property owners, and the property’s co-owners, then sued the city of New London, Connecticut, claiming that the city had abused its eminent domain power. Their argument was that economic development, the purpose stated by the government for taking the land, was in violation of the Fifth Amendment, in that it did not quality as a public use.

The Connecticut Supreme Court heard the case, and ultimately sided with the city. The Court held that the government’s use of eminent domain here did not violate the public use clauses defined by state and federal constitutions. Further, the court held that, if an economic project creates new jobs, increases revenues, and reinvigorates a suffering community, that project serves a “public purpose.

The plaintiffs then filed for a writ of certiorari. The Supreme Court of the United States agreed to hear the case to determine whether a “public purpose” was equal to “public use,” as defined by the Fifth Amendment. The Court also needed to decide whether the Fifth Amendment protected landowners from their property being seized for the purposes of economic development, as opposed to the purpose of eliminating slums and other unsavory aspects of a community. The case attracted significant attention, with organizations like the National Association for the Advancement of Colored People (“NAACP”) and the American Association of Retired Persons (“AARP”) on Kelo’s side.

The Court ultimately found in favor of the city, affirming the lower court’s ruling. In a 5-4 decision, the Court held that the benefits that a community enjoys from the growth of its economy does, in fact, qualify private redevelopment plans as a permissible “public use,” as defined by the Fifth Amendment. The decision was a controversial one, though not unfamiliar to the Supreme Court, as the Court had been known to interpret “public use” and “public purpose” in the past. The following quote comes from the dissenting opinion, issued by Justice Sandra Day O’Connor:

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

The major concern of the dissenting opinion was that this use of eminent domain was comparable to a reverse Robin Hood situation: to take from the poor and give to the rich. The authors also believed that this practice was being set up to become the norm, rather than the exception. O’Connor also argued that the decision eliminated the difference between the private and public use of property, which essentially cancels out the “for public use” section of the Fifth Amendment’s Takings Clause.

Related Legal Terms and Issues

• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Statute of Limitations – The statute that outlines a time frame during which certain legal actions can be brought. Actions brought after the specified period may be dismissed by the courts as untimely.
• Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.