Eminent Domain

Table of Contents

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General Information (back to top)

NOTICE:  Each state has different laws concerning the way in which the government can seize real property from owners.  The following questions and answers apply generally to most states.  Please contact Sever Storey Law to gain guidance if the state or one of its agencies is trying to take your property.  It is best to have an experienced lawyer on your side to protect your rights and to ensure that you are getting the best price for your property.   

What is condemnation (or eminent domain)? (back to top)

Eminent domain is the process by which states and localities have the right to condemn and force the sale of private property usually in order to serve a public purpose.  Condemnation is the act of a government exercising its power of eminent domain, not to be confused with the legal process where a building is designated as no longer fit for habitation. 

Who can take my property? (back to top)

Federal, state and local municipalities have the power of eminent domain.  However, in some situations these bodies have delegated that authority to administrative agencies, local boards and in some situations public utilities.  Moreover, following a recent Supreme Court decision, land can be taken by private enterprises where a public economic interest can be served.

For what reason can the state take my property? (back to top)

The state can use its power of eminent domain to achieve a public purpose that benefits the public.  In Indiana the law was recently amended in 2006 to further protect the rights of property owners.  It is best to consult with an experienced lawyer to see how this law benefits you. 

What is a public purpose? (back to top)

There is no one specific definition of “public purpose.”  The courts have been incredibly liberal in allowing legislatures broad authority in answering that question.  Traditionally, a public purpose project was seen as a school, highways, or airports.  In recent years the courts have recognized more private enterprises as fitting that public purpose, e.g. economic development zones and specialized technology parks.

The Indiana General Assembly in 2006 passed new legislation that strengthened the rights of property owners and narrowed the definition of “public purpose” for projects in Indiana.  You should consult with a lawyer to see how this new law benefits you and how it protects your rights.     

Does the state have the right to take my property? (back to top)

As with all things, it depends.  The state has the power of eminent domain to acquire your property.  However, only the court can authorize the transfer if you don’t want your property taken.  In order for the state to prevail in court they need only show that your property is reasonably necessary for a public project – normally a very easy burden for the state to prove.   

Do I have to take the amount that the state is offering for my property? (back to top)

No.  The state is required to pay you just compensation for your property.  Normally just compensation means the fair market value of the property.  Fair market value is usuallly the amount of money that a normal willing buyer would offer if the property was for sale.   

How is the property appraised? (back to top)

Each state has different rules governing the appraisal process.  However, the property is generally valued at its current value and not as its future potential. 

Who determines the fair market value or just compensation of my property? (back to top)

Normally the state employs an appraiser to determine the value of your land.  In Indiana the court appoints three independent appraisers to value the property.  Additionally, the law recognizes the right of property owners to seek guidance from a lawyer and of an appraiser of their own choosing.   

If I disagree with the appraisal offered by the state, who decides how much money I get? (back to top)

You can petition the court for a trial to decide the value of the property should you disagree with the just compensation being offered by the state.  The trial court will then decide the full amount of damages you are to receive.  Both the state and the property owner are entitled to present legal evidence supporting their opinions of the fair market value of the property.  It is important to note that the court’s decision is made independently and may be more or less than the original offer.

How will I find out that the state (or one of its agencies) wants my property? (back to top)

Normally, a property owner will know well in advance that their property is being sought after by notices in media or generally through word-of-mouth news of upcoming state projects.  Before instituting any type of condemnation or eminent domain proceeding in Indiana, the state is required to enter into purchase negotiations with the property owner.  Only if those negotiations fail will the state institute condemnation proceedings where the property owner will receive notice by the court.

What is mediation or negotiation? (back to top)

Mediation is a process by which the state and property owner enter into talks mediated by a neutral third party.  Indiana law requires that the state enter into good faith negotiations to acquire property by purchase prior to entering into condemnation proceedings.  It is best for a property owner to have representation by a lawyer when negotiating with the state and during any type of mediation that the law may require.

Eminent Domain & Condemnation Articles