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Practice Definitions  | Eminent Domain

Eminent Domain

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Condemnation is the process of taking private property through the power of eminent domain. Eminent domain is the right states and localities and the federal government have to condemn and force the sale of private property. Although an individual's rights are subordinated to the government, the owner is entitled to receive just compensation for his or her property when it's taken by the government.

Most people know that property can be taken for public use like building a school, freeway, court house or library. But, many don't know that property can also be taken for private projects, as well. If an area is considered "blighted" (deteriorated) by the city (or other locality), state or federal government, any property in the blighted area can be condemned through the power of eminent domain and the property owners will be forced to sell their property. For example: in particular areas' efforts to ease housing shortages, private property is being taken by city governments for the purpose of building condominiums and apartments that will house more people in the same amount of space than what is currently being housed in the affected area.

What is a Pro Tanto Award?

Once the government determines it will take your property under the power of eminent domain, it will appraise your property. A pro tanto award is the amount of money the government offers for your property based on the appraisal. You have the option of either accepting or rejecting the pro tanto award. It's best to consult with a lawyer to determine whether or not to accept the pro tanto award and determine your legal rights under eminent domain.

Can the police take my property under the power of eminent domain?

No, the only ways the police or any other law enforcement agency can take your property are under civil forfeiture (civil condemnation) and criminal forfeiture. Civil and criminal forfeiture are different than eminent domain in the respect that you are not compensated for the seizure of the property, and the seizure takes place because the government has reason to believe that your property was used during the commission of a crime or it was purchased from the proceeds of a crime or criminal activity.

Civil forfeiture rests on the idea that the property itself, not the owner, has violated the law, so the owner is not typically convicted of crime. But the property is still seized by the police. An example of how civil forfeiture can happen is if a spouse, relative, tenant or roommate uses your property while committing a crime. The only way to get your property back under civil forfeiture circumstances is to prove you were an innocent owner, which means that you had no knowledge that the property was being used for a criminal activity. You will need to consult with an attorney immediately if this happens, so he/she can determine if the government acted appropriately and whether you are eligible for an innocent owner defense. If the property owner is convicted of a crime and the property is seized, then it's a criminal forfeiture and you will definitely need to hire a criminal defense lawyer ASAP.
Should I hire a lawyer?
If you are facing eminent domain, use the State Lawyers Directory to find a lawyer specializing in condemnation/eminent domain to help you assert your legal rights and help you obtain just compensation for your property. If you are faced with civil forfeiture, consult with a real estate attorney now to determine if the government acted appropriately and if you can use the innocent owner defense to get it back. For criminal forfeiture matters, you will need to consult with a criminal defense lawyer to prove your innocence and/or prove that your property was not connected with the crime.
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