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Can the Government take Your Property? [What you need to know]

Sep 16, 2019 | Eminent Domain

Can the Government take Your Property? [What you need to know]

Condemnation, in simplest terms, is the acquisition of private property by a certain public or private entity for public use.

If you, as a landowner, are facing condemnation of your property, this concept may seem unjust and burdensome.

It may even seem like, for instance, the federal government and/or State of Texas and/or a local government can take ownership of your property simply because they want it.

This is not the case.

Fortunately, the authority that entities seeking to acquire land through condemnation does is not unlimited, and there are precise rules that must be followed in order to legally acquire property.

Moreover, if a federal, state, or private entity fails to adhere to these rules, then the property or its equivalent value must be returned to you.


Can the Government Take Your Property?

Can the Government Take Your Property? What right do they actually have? 

Under the concept of “eminent domain,” your property can be acquired for public use, meaning, that if the condemnation/=, or the taking of your property would serve to benefit the public in some form or fashion.

Example:  a city’s expanding of roads and access to utilities in  accommodation of an increasing population

In the above example the entity seeking to provide that public benefit can invoke the power of eminent domain to acquire all, or a part of your property.

To clarify, land that is acquired for the sale to a third party does not qualify as land acquired for “public use”.

To acquire your property, however, the government must provide you with fair and just compensation.

You, the landowner, are fundamentally entitled to this requirement.

For this reason, it is imperative to seek the counsel of an experienced eminent domain attorney to ensure that you are properly compensated.


A Brief History of the Fifth Amendment “Takings Clause” and Eminent Domain

The government derives its eminent domain powers through several sources. The concept dates back to the days before the United States became a sovereign country. In fact, the current Takings Clause of the U.S. Constitution is derived from the Magna Carta.

The Takings Clause was included in the Bill of Rights as the Fifth Amendment. Thomas Jefferson was concerned that the federal government would become too powerful and would simply take the land as it saw fit for its use. He included the Takings Clause as part of the Fifth Amendment, which reads that no person can “be deprived of life, liberty, property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fifth Amendment created a right to take private property for the government, but only if certain conditions were met.

The Texas Constitution, in Article 1, Section 17, also includes a Takings Clause that is similar in substance to the federal Constitution.


Defining “Just Compensation” as Part of Your Eminent Domain Rights

In order for the government to make a successful claim of eminent domain, it must provide “just compensation” for the taking. That process will generally involve the government employing its own appraisers and other experts to determine the value of the land.

Determining what constitutes just compensation can be complex, and the matter is further complicated in the case of partial condemnations. As a general rule, where an entire property is taken, the Government/Condemning Authority must pay the landowner an amount equal to the fair market value of said property (plus relocation costs in certain circumstances). Fair market value is generally the amount that the landowner could get if he or she were to sell the property to a third party who is a willing buyer in an arms-length transaction. In simplest terms, the price of the property if it were to sell in current market conditions. This value can be determined by using various valuation methods including, but not limited to, comparative market analysis and professional appraisal incorporating sales comparison approach, income approach, and replacement cost approach methods.

An appraisal to determine the fair market value will usually include variables such as:

  • The surrounding comparable properties;
  • The timing of the sale;
  • The type of property involved;
  • The condition of the property; and
  • Current use of the land (but also the highest and best use is considered as well)Current land values and construction costs
  • Local building codes and restrictions

It is not uncommon for the government’s appraisal value to be much lower than the property is actually worth, as the methods often implemented to value the property by the Condemning Authority or the government are sometimes tailored to fit its financial interests and, therefore, will present an inaccurate valuation of the property. Fortunately, you can rebut these appraisals with your own experts.

When challenging the just compensation requirement, it is imperative to have the assistance of an experienced eminent domain attorney. Not only can an attorney advise you of your rights, but he or she can assist you in maximizing your compensation. A lawyer will help you to prove that the property is worth its true fair market value and more than the Condemning Authority is offering or claims it to be worth and, in some cases, retain an experienced real estate appraiser, broker, or other experts to value your property both before and after the taking.


Examples of “Public Use”

The government cannot harm or take property unless it for public use. This definition is not as broad as you might think, but it still covers quite a few items. Public use examples commonly include the following:

  • Utility line expansion (oil, gas, water, etc.)
  • Creating new roads or expanding highways
  • Developing municipal infrastructure
  • Railway lines (or any other transportation services)
  • Creating parks, lakes, or other public recreational areas
  • Erecting public buildings
  • Building schools

In Texas, the government cannot generally take land if any of the following circumstances apply:

  • The land development would benefit a particular private party
  • The public-use is a mere pretext to benefit a private party
  • The project is solely for economic development

Things like community projects, sports complexes, and libraries are all considered generally valid reasons for the government taking property.


Take Action and Protect Your Property!

Take Action and Protect Your Property

Even though it may not seem like it in some situations, you still have rights if the government or any condemning authority notifies you that it plans to take your property. You can question everything about the process, from the procedure to the value of your property.

You can even bring an inverse condemnation claim against the government if it failed to follow the procedures set out by Texas law. You may be able to receive your property back, get money damages, or have zoning or other regulations that affect your property changed, depending on the circumstances.

You have rights under eminent domain proceedings, and an experienced Houston eminent domain attorney can help you assert them.


Contact Padua Law Firm for Eminent Domain Counsel Today

If you believe your property is being damaged or taken by the government without just compensation, you have rights. Let the  eminent domain attorney‘s at Padua Law Firm help you assert them. You can fight back against the government in many situations—and we can help. Call for a free consultation: 713-840-1411.