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Can I fight an eminent domain action?

On Behalf of | Aug 5, 2022 | Real Estate

Real Estate law can be complicated and messy. This is because it is some of the oldest law and court cases in the United States, and it has changed significantly over the hundreds of years of our country’s existence. However, the supposed hallmark of our real estate law system is that all transactions are voluntary.

In other words, someone is looking to sell and another person is looking to buy. Unfortunately, for governmental purchases, the voluntary nature of real estate transactions is not always true.

Involuntary property seizure through eminent domain

If that last line confused you, that is understandable. For Indianians, the idea of the government coming into our home and taking it is horrifying. However, through the legal process known as eminent domain, the federal government, along with local and state governments, can and do routinely take citizens’ land and homes.

Eminent domain is in the Constitution

It may shock our readers, but eminent domain is actually a government constitutional right. The Fifth Amendment’s Takings Clause explains that no “private property [shall] be taken for public use, without just compensation.” This means that the government has the right to take your property, as long as it provides just compensation.

Public use vs. just compensation

Many Indianapolis, Indiana, property owners believe that they can fight an eminent domain action by arguing that whatever the reason the government is claiming for the action is not public use. And, while your lawyer should and likely will make some argument on this point, unfortunately, the case law that has developed over the prior hundred years or so is not great for property owners.

Indeed, courts are so permissive that just about any use could qualify as a public use to justify taking your property. This can be a harsh reality, especially when the property has been in the family for generations, and the property owner does not agree with or will not get anything from the proposed public use.

Just compensation

As such, the vast majority of Indianapolis, Indiana, eminent domain cases are truly litigated over what qualifies as just compensation. Today, just compensation equates to fair market value (FMV). FMV is determined using the property’s current and any potential uses, what has been done to the property or on the property, the property’s size, access to the property, zoning and the property’s unique characteristics.

Both sides will submit their own evidence and experts to argue FMV, and the case will, generally, hinge on this information and testimony.

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