What Happens When The Government Condemns Land?

Any home or business property may be condemned by the government. Condemnation is the power of the government to take property away from private owners for some governmental purpose. The power is used, for example, when the state acquires farmland to build a highway or when a school district acquires a shopping mall for the construction of a school.

Unlike other real estate transactions, condemnation is not a transaction between willing parties. An owner has no power to refuse the government's proper condemnation of his or her land. Otherwise, an individual landowner could veto an important public project, such as an expressway or a fire station, simply by refusing to sell the needed land to the government. If an owner refuses to sell his or her land, the government may file an eminent domain lawsuit to force the sale. In that case, the court will order you to sell your property to the government for a fair price.

The United States Constitution establishes limits upon the government's use of condemnation. The familiar words of the Fifth Amendment to the Constitution state: "[N]or shall private property be taken for public use, without just compensation." The Illinois Constitution has similar language. Two important protections are included in the Fifth Amendment. First, the use for which the private property is taken must be a public one. Second, the government must pay just compensation for the land that is taken.

Public Use

For most government projects, the use for which property is taken is obviously public. Your home or business might be taken for the construction of such public projects as libraries, parks, police stations, public hospitals, jails, roads, dams, or sewage treatment plants. It may be surprising that the government can also acquire your property not for use by the government but in order to convey it to another private owner. Almost any kind of condemnation is considered legal, as long as there is an arguable public purpose behind it.

The breadth of the power of government condemnation was shown in a case before the United States Supreme Court. In Hawaii, most land titles had been held by only a few landowners. Homeowners could not own the land upon which their houses were situated. They were forced to rent their land for a limited number of years. The Supreme Court upheld the right of Hawaii to condemn the land from the original landowners and to sell it to the renters, in order to redistribute ownership.

Recently, an Illinois court permitted the City of Chicago to take a fully rented office building from its owner so that the city could convey the building to a private company for development as part of a private theater renovation. The public use was the development of an urban theater district in a blighted area.

Just Compensation

As a prerequisite to the government's taking your property, it must first pay just compensation. "Just compensation" is defined as market value--the same amount for which you could sell the property in a voluntary sale on the open market. For most homes, apartments, and business properties, market value is determined by finding out for what price other similar properties in the vicinity have been sold.

When acquiring your property for a public project, the government must first attempt to negotiate a sale price with you. If you think that the government's offer does not represent fair market value, you do not have to accept it. It is your right to have the amount of just compensation determined by a judge or a jury in an eminent domain court proceeding. In such a judicial proceeding, you may present facts supporting your valuation by using expert appraisal witnesses and evidence of comparable property sales. The government will then present evidence supporting its valuation, and the court will decide the amount of just compensation to be awarded.

If you own property that is subject to condemnation, be sure to seek the advice of a qualified attorney

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