What Is Eminent Domain?


Why Is the Government Suing Me for My Property?

If the government is suing you for your property in civil court, then you’re part of an eminent domain action. Eminent domain is a cause of action initiated by a federal, state, and local government to take property from private individuals for a public purpose. However, the government must pay just compensation to the property owner. Accordingly, actions involving eminent domain have the following elements:

  1. A public purpose;
  2. A “taking” by the government; and
  3. Just compensation.

Constitutional Background

The requirements in eminent domain cases stem from the “takings clause” of the U.S. Constitution. Under the 5th Amendment of the U.S. Constitution, “private property [shall not] be taken for public use, without just compensation.”

The California counterpart to the “takings clause” is found in Article I, Section 19 of the constitution, which reads: “Private property may be taken or damaged for public use only when just compensation … has first been paid to, or into the court for, the owner.”

What Qualifies as a “Public Purpose?”

The government may not take your property for something other than a public purpose. Furthermore, the taking must be necessary to achieve a legitimate public purpose. In general, the protection and regulation of the moral, economic, health and safety of the public is considered a legitimate public purpose. This can include clearing slums, attracting business and tourism, and creating jobs. The government may not take a private citizen’s property and give it to another private citizen.

In California, statutes relating to eminent domain are found in the Code of Civil Procedure. Under Section 1230.030 of the California Code of Civil Procedure, the government may exercise eminent domain to provide for education, infrastructure, law enforcement, emergency services, etc.

What Is a “Taking?”

A taking occurs when the property owner is deprived of his or her right to enjoy possession and economic use of their property. A “taking” does not necessarily occur in the physical sense of the word.

A taking can occur through the following methods:

  • Obtaining title to property;
  • Physically occupying property;
  • Severely restricting the use of the property;
  • Reducing the economic value of the property;
  • Damaging property.

When the government imposes regulations that effectively render adjacent land useless (e.g. zoning and environmental regulations), this is referred as a “regulatory taking.” Therefore, when government regulations result in the diminution of value for private property, the property owners must receive just compensation.

Just Compensation

The government must pay fair market value for the taken property. However, a property owner who has been subjected to eminent domain isn’t forced to accept the government’s offer. Property owners may negotiate the proper figure for “just compensation” and assert a higher amount than the government alleged in its court filings.

Appraisers then determine the fair market value of the property in question. The “fair market value” is thereafter determined at the highest price on the date of valuation by which the owner would agree to sell to a willing, ready, and able buyer under no particular urgency.

What Is Eminent Domain Procedure?

In California, an action for eminent domain begins by filing a complaint with the court in the same manner as other civil complaints, including service of process procedures. Cal. Civ. Proc. Code §§ 1250.110-120.

The defendant-property owner may challenge the government-plaintiff’s allegations through a demurrer or answer per Civil Procedure Code, Section 430.30 on certain statutory grounds enumerated in Section 1250.360. Cal. Civ. Proc. Code § 1250.350.

Statutory grounds for objection by demurrer include:

  1. The plaintiff is not authorized by law to exercise eminent domain for the stated purpose;
  2. The stated purpose is not a public use;
  3. The plaintiff does not intend to use the property for a public use;
  4. The plaintiff is unlikely to use the property for the stated purpose within 7 years, or 10 if taken per the Federal Aid Highway Act of 1973, or longer;
  5. The property is not subject to acquisition through eminent domain for the stated purpose;
  6. The property does not qualify for taking through excess condemnation, condemnation for compatible use, or condemnation for more necessary public use;
  7. The defendant has the right to jointly use the property if it qualifies under condemnation for a more necessary public use;
  8. Other lawfully recognized grounds.

California Eminent Domain Attorneys

At Allen, Semelsberger & Kaelin LLP, we have the experience, acumen, and skill to litigate the toughest and most complicated eminent domain matters. Over the years, we have been recognized and awarded for our achievements and successful results.

Please call us at (888) 998-2031 or contact us online to schedule a complimentary case evaluation with an experienced eminent domain lawyer in California.