Eminent domain
Encyclopedia
Eminent domain compulsory purchase (United Kingdom
, New Zealand
, Ireland
), resumption/compulsory acquisition (Australia
), or expropriation
(South Africa
and Canada
) is an action of the state
to seize a citizen's private property
, expropriate
property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent. The property is taken either for government
use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. The most common uses of property taken by eminent domain are for public utilities
, highway
s, and railroad
s; however, it may also be taken for reasons of public safety, such as in the case of Centralia, Pennsylvania
. Some jurisdictions require that the government body offer to purchase the property before resorting to the use of eminent domain.
jurist
Hugo Grotius
in 1625, who used the term dominium eminens (Latin
for supreme lordship) and described the power as follows:
Some U.S. states, including New York
and Louisiana
, use the term appropriation
as a synonym for the exercising of eminent domain powers.
. After the condemnation action is filed the amount of just compensation is determined. However, in some cases, the property owner challenges the action because the proposed taking is not for "public use", or the condemnor is not authorized to take the subject property, or has not followed the proper substantive or procedural steps as required by law.
rights, patent
s, trade secret
s, and copyright
s. Even the taking of professional
sports team's franchise has been held by the California Supreme Court to satisfy the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.
. In the early years, unimproved land could be taken without compensation; this practice was accepted because land was so abundant that it could be cheaply replaced. When it came time to draft the United States Constitution
, differing views on eminent domain were voiced. Thomas Jefferson
favored eliminating all remnants of feudalism
, and pushed for allodial ownership. James Madison
, who wrote the Fifth Amendment to the United States Constitution
, had a more moderate view, and struck a compromise that sought to at least protect property rights somewhat by explicitly mandating compensation and using the term "public use" rather than "public purpose", "public interest", or "public benefit".
The Fifth Amendment imposes limitations on the exercise of eminent domain: the taking must be for public use and just compensation must be paid. Some historians have suggested that these limitations on the taking power were inspired by the need to permit the army to secure mounts, fodder and provisions from local ranchers and the perceived need to assure them compensation for such takings. Similarly, soldiers forcibly sought housing in whatever homes were near their military assignments. To address the latter problem, the Third Amendment
was enacted in 1791 as part of the US Constitution's Bill of Rights
. It provided that the quartering of soldiers on private property could not take place in peacetime
without the landowner's consent. It also required that, in wartime
, established law had to be followed in housing troops on private property. Presumably, this would mandate "just compensation", a requirement for the exercise of eminent domain in general per the Fifth Amendment. All US states have legislation specifying ED procedures within their respective territories.
The power of governments to take private real or personal property has always existed in the United States, being an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, "...nor shall private property be taken for public use, without just compensation". The Fifth Amendment did not create the national government's right to use the eminent domain power, it simply limited it to public use.
The U.S. Supreme Court has consistently deferred to the right of states to make their own determinations of public use, although the reason why the constitutional term "public use" should not be subject to judicial interpretation, the same as other constitutional terms, has not been explained. In 1832 the Supreme Court ruled that eminent domain could be used to allow a mill owner to expand his dam and operations by flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit. In Clark vs. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of public use thus varied with the facts of the case. It ruled a farmer could expand his irrigation ditch across another farmer's land (with compensation), because that farmer was entitled to "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters... [is] a public use." Here in recognizing the arid climate and geography of Utah
, the Court indicated the farmer not adjacent to the river had as much right as the farmer who was, to access the waters. However, until the 14th Amendment was ratified in 1868, the limitations on eminent domain specified in the Fifth Amendment applied only to the federal government and not to the states. That view ended in 1896 when in the Chicago, Burlington & Quincy Railroad v. Chicago case the court held that the eminent domain provisions of the Fifth Amendment were incorporated in the Due Process Clause of the Fourteenth Amendment and thus were now binding on the states, or in other words, the states are required to take property for a public purpose and compensate the property owner for his loss. This was in-tune with the beginning of what is known as the "selective incorporation" doctrine.
An expansive interpretation of eminent domain was reaffirmed in Berman v. Parker (1954), in which the U.S. Supreme Court reviewed an effort by the District of Columbia to take and raze blighted structures, in order to eliminate slums in the Southwest Washington area. After the taking, held the court, the taken and razed land could be transferred to private redevelopers who would construct condominiums, private office buildings and a shopping center. The Supreme Court ruled against the owners of a non-blighted property within the area on the grounds that the project should be judged on its plans as a whole, not on a parcel by parcel basis. In Hawaii Housing Authority v. Midkiff
(1984), the Supreme Court approved the use of eminent domain to transfer a land lessor's title to its tenants who owned and occupied homes built on the leased land. The court's justification was to break up a housing oligopoly, and thereby lower or stabilize home prices, although in reality, following the Midkiff decision, home prices on Oahu escalated dramatically, more than doubling within a few years.
The Supreme Court's decision in Kelo v. City of New London
, 545 U.S. 469 (2005) affirmed the authority of New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. This 5-4 decision received heavy press coverage and inspired a public outcry that eminent domain powers were too broad. in reaction to Kelo, several states enacted or are considering state legislation that would further define and restrict the power of eminent domain. The Supreme Courts of Illinois, Michigan (County of Wayne v. Hathcock (2004)), Ohio (Norwood, Ohio v. Horney
(2006)), Oklahoma, and South Carolina have recently ruled to disallow such takings under their state constitutions.
The redevelopment in New London, the subject of the Kelo decision, proved to be a failure and as of the early 2010 (over four years after the court's decision) nothing has been built on the taken land in spite of the expenditure of over $80 million in public funds. The Pfizer
corporation, who would have been the primary beneficiary of the additional development, announced in 2009 that it would close its $300 million New London research facility, shortly before the expiration of its 10-year tax abatement agreement with the city. The facility was subsequently purchased in 2010 for just $55 million by General Dynamics Electric Boat.
American libertarians argue that eminent domain is unnecessary. Bruce L. Benson
notes that utilities, for instance, have a variety of methods at their disposal, such as option contract
s and dummy buyers, to obtain the contiguous parcels of land needed to build pipelines, roads, and so forth. These methods are routinely used to acquire land needed for shopping malls and other large developments. Walter Block
argues that the problem of recalcitrant landowners ("curmudgeons") who refuse reasonable offers for the sale of their land is solved in the long term by the fact that their failure to accumulate wealth through such trades will give them a relative disadvantage in attempting to accumulate more land. Thus, the vast majority of land will tend to fall into the control of those who are willing to make profitable exchanges.
This approach has been severely criticized because it omits from consideration a variety of incidental economic losses that a taking of land inflicts on its owners. The most egregious example of such losses is provided by the American rule that denies any compensation to owners of businesses that are destroyed when land on which they are located is taken, and the business cannot relocate. A small minority of states have provided by statute that at least some business losses are compensable.
Also, attorneys' and appraisers' fees are not recoverable (except in Florida) so the owners of the taken property never recover the full value of the taken land, even if they prevail in the valuation trial, because a part of their recovery must be used to pay those lawyers and appraisers. Some states do provide for limited recovery of such litigation expenses, typically when the owners' recovery substantially exceeds the amount of the condemnor's pretrial offer or the evidence presented by the condemnor at trial by a specified percentage. Also, when a condemnation action is abandoned, the owners are typically entitled (by statute) to be paid reasonable attorneys' and appraisers' fee they had to incur in defending the condemnation action.
When payment of compensation is delayed, the owner of the taken land is entitled to receive interest on the award of compensation, that accrues from the time of taking to the time of payment.
The interest must be reasonable, so that when prevailing market rates of interest exceed the statutory rate (as in inflationary times), the former has to be used.
The U.S. Supreme Court takes the position that unlike the determination of what is a "public use," the determination of compensation is a judicial, not legislative, function, but legislatures are free to provide for more liberal awards of compensation than the constitutional minimum determined by courts.
In cases of partial takings of land, the owners are entitled to compensation for the taken part, plus severance damages (the diminution of value of what remains of their property after the taking). If the partial taking creates special benefits (i.e., it causes an increase in the value of the remaining land) their value is offset againt compensation, with the majority of states allowing such offsets only against severance damages, so the owner always gets paid for the taken land. When a partial taking impairs access to the remainder land, that gives rise to a contentious issue because courts take the position that diminution in value caused by impaired access is compensable only when the impairment is substantial. Traffic regulations that affect access (one-way streets, median dividers, etc.) are deemed exercises of the police power and are not compensable.
In addition to fee simple titles, all interests in property (easements, leaseholds, etc.) are compensable. The measure of value of a leasehold is the amount by which prevailing comparable rentals in the area exceed the actual contracted-for rent. This amount is known as "bonus value" of a lease. It is calculated over the remaining life of the lease and then reuced to its present value. The measure of compensation for an easement is the difference in the value of the subject land as unencumbered and as encumbered by the easement.
In determining value, zoning and other land-use regulations are considered, but if it appears that there is a reasonable probability of zone change to a higher use, that may be shown and in that case the owner is entitled to an additional increment of value (the extra amount over and above the value under current zoning, that the market would pay for the probability of rezoning).
The appraisal profession recognizes several different methods of calculating value, but courts are largely stuck in the conventional approach of using three valuation approaches: (a) market data analysis or comparable sales value, (b) the capitalization of rentals, and (c) the reproduction-less-depreciation approach under which the cost of reproducing the improvements on the propery is estimated and then depreciated to allow for wear and tear and functional or economic obsolescence. The value of the land is then added to the value of the reproduced, depreciated improvements. Some states allow compensation as the cost of reproduction without depreciation, but only in cases where the subject property, though privately owned, performs an important public or charitable function.
The U.S. Supreme Court has indicated (U.S. v. Cors) that it is not its intention to make a "fetish" out of market value as the measure of compensation, and that other approaches may be used when conventional methods do not work, or if applied, would create an injustice (Pewee Coal v. United States). These situations, however, are extremely rare.
Sudies in several parts of the country (California, Georgia, Minnesota, New York and Utah) have demostrate that condemning agencies frequetly undercompensate property owners, and that those owners who reject the pre-litigation offers and go to court tend to recover substantially higher awards, whether by judges or juries.
If property is compulsorily or involuntarily converted into money (as in eminent domain) the proceeds can be reinvested without payment of capital gains tax provided it is reinvested in property similar or related in service or use to the property so converted, no capital gain shall be recognized.
George W. Bush
issued Executive Order 13406 which stated in Section I that the federal government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." The order limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken". However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the federal government.
provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home, and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security
, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions.". Again, this is subject to exceptions where state deprivation of private possessions is in the general or public interest
, is in accordance with law, and, in particular, to secure payment of tax
es. Settled case-law of ECHR provides that just compensation has to be paid in cases of expropriation.
, the Declaration of the Rights of Man and of the Citizen
similarly mandates just and preliminary compensation before expropriation; and a Déclaration d'utilité publique
is commonly required, to demonstrate a public benefit.
Notably, in 1945, by decree of General Charles de Gaulle
based on the untried accusations of collaboration, the Renault
company was expropriated from Louis Renault posthumously and nationalised as Régie Nationale des Usines Renault — without compensation.
used the Crown's right of purveyance
for massive expropriations. Chapter 28 of the Magna Carta
required that immediate cash payment be made for expropriations. As the king's power was broken down in the ensuing centuries, tenants were regarded as holding ownership rights rather than merely possessory rights over their land. In 1427, a statute was passed granting commissioners of sewers in Lincolnshire
the power to take land without compensation. After the early 16th century, however, Parliamentary takings of land for roads, bridges, etc. generally did require compensation. The common practice was to pay 10 per cent more than the assessed value. However, as the voting franchise was expanded to include more non-landowners, the bonus was eliminated.
Allodial title
is the title to land generally held in fee simple
by an individual or group that is sovereign on that land. Thus, in English law, only the monarch holds allodial title. All others are tenants of the sovereign through their feudal vassal
ages. Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through right of conquest
.
In England and Wales
, and other jurisdictions that follow the principles of English law
, the related term compulsory purchase is used. The landowner is compensated with a price agreed or stipulated by an appropriate person. Where agreement on price cannot be achieved, the value of the taken land is determined by the Lands Tribunal
, a court consisting of one barrister and two chartered surveyors
. The operative law is a patchwork of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, the Compulsory Purchase Act 1965, the Land Compensation Act 1973, the Acquisition of Land Act 1981, part IX of the Town and Country Planning Act 1990
, the Planning and Compensation Act 1991
, and the Planning and Compulsory Purchase Act 2004
.
states in its Article 14 (3) the "an expropriation is only allowed for the public good" and just compensation must be made. It also provides for the right to have the amount of the compensation checked by a court.
takes place within the frame of civil law
. The law regulating expropriation is the D.P.R. n.327 of 2001, amended by D.Lgs. n.302 of 2002; it supersedes the old expropriation law, the Royal Decree n.2359 of 1865. Also other national and regional laws may apply. The general provisions for the expropriation stem from article 42 of the Italian Constitution
and article 834 of the Codice Civile. Expropriation can be total (the whole property is expropriated) or partial; permanent or temporary.
Nazionalizzazione ("nationalization"), instead, is provided for by article 43 of the Constitution; it transfers to governmental authority and property a whole industrial sector, if it is deemed to be a natural or de facto monopoly
, and an essential service of public utility. The most famous nationalization in Italy was the 1962 nationalization of the electrical power sector
.
permits the Commonwealth Parliament
to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws." This has been construed meaning that just compensation may not always include monetary or proprietary recompense, rather it is for the court to determine what is just. It may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated.
Property subject to resumption is not restricted to real estate as authority from the Federal Court
has extended the states' power to resume property to any form of physical property. For the purposes of section 51(xxxi), money is not property which may be compulsorily acquired.. A statutory right to sue has been considered "property" under this section.
The Commonwealth must also derive some benefit from the property acquired, that is, the Commonwealth can "only legislate for the acquisition of Property for particular purposes". Accordingly, the power does not extend to allow legislation designed merely to seek to extinguish the previous owner's title. The states and territories' powers of resumption on the other hand are not so limited. The section 43(1) of the Lands Acquisition Act 1998 (NT) grants the Minister the power to acquire land 'for any purpose whatever'. The High Court of Australia interpreted this provision literally, relieving the Territory government of any public purpose limitation on the power. This finding permitted the Territory government to acquire land subject to Native Title, effectively extinguishing the Native Title interest in the land. As noted by Kirby J in dissent and a number of commentators, this represents a missed opportunity to comment on the exceptional nature of powers of resumption exercised in the absence of a public purpose limitation.
The term resumption is a reflection of the fact that, as a matter of Australian law, all land was originally owned by the Crown
before it was sold, leased or granted and that, through the act of compulsory acquisition, the Crown is "resuming" possession.
The vast majority of expropriated owners accept the amount of the indemnification, which usually is in line with real estate market values.
under Articles 19 and 31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of property'. Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been 'taken possession of or acquired' for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's 'eminent domain' powers.
The provisions relating to the right to property were changed a number of times. The 44th amendment act of 1978 deleted the right to property from the list of Fundamental Rights. A new article, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus, if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisation of the economy and the Government's initiative to set up special economic zones have led to many protests by farmers and have opened up a debate on the reinstatement of the fundamental right to private property.
, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport
, and the disproportionately large amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave, one well-known recent case being that of Roppongi Hills
.
There are other countries such as the People's Republic of China
that practice eminent domain whenever it is convenient to make space for new communities and government structures. Singapore
practices eminent domain under the Land Acquisitions Act which allows it to carry out its Selective En bloc Redevelopment Scheme
for urban renewal. The Amendments to the Land Titles Act allowed property to be purchased for purposes of urban renewal against an owner sharing a collective title if the majority of the other owners wishes to sell and the minority did not. Thus, eminent domain often invokes concerns of majoritarianism
.
Since the 1990s, the Zimbabwe
an government under Robert Mugabe
has seized a great deal of land and homes of mainly white farmers in the course of the land reform movement in Zimbabwe
. The government argued that such land reform was necessary to redistribute the land to Zimbabweans dispossessed of their lands during colonialism
.
Instances of compulsory acquisition in literature and films include The Hitchhiker's Guide to the Galaxy
, where first Arthur Dent's home is acquired for the building of a bypass road and then the Earth is acquired (demolished) to make way for a hyperspace bypass; and The Castle
, an Australian film, where the Kerrigans' home is sought to be acquired to allow for an airport extension.
In Stephen King
's novel Roadwork
, published in 1981, the protagonist's house is purchased to make way for a road extension.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
), resumption/compulsory acquisition (Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
), or expropriation
Expropriation
Expropriation is the politically motivated and forceful confiscation and redistribution of private property outside the common law. Unlike eminent domain or laws regulating the foreign investment, expropriation takes place outside the common law and may be used to denote an armed robbery by...
(South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
) is an action of the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
to seize a citizen's private property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, expropriate
Nationalization
Nationalisation, also spelled nationalization, is the process of taking an industry or assets into government ownership by a national government or state. Nationalization usually refers to private assets, but may also mean assets owned by lower levels of government, such as municipalities, being...
property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent. The property is taken either for government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. The most common uses of property taken by eminent domain are for public utilities
Public utility
A public utility is an organization that maintains the infrastructure for a public service . Public utilities are subject to forms of public control and regulation ranging from local community-based groups to state-wide government monopolies...
, highway
Highway
A highway is any public road. In American English, the term is common and almost always designates major roads. In British English, the term designates any road open to the public. Any interconnected set of highways can be variously referred to as a "highway system", a "highway network", or a...
s, and railroad
Rail transport
Rail transport is a means of conveyance of passengers and goods by way of wheeled vehicles running on rail tracks. In contrast to road transport, where vehicles merely run on a prepared surface, rail vehicles are also directionally guided by the tracks they run on...
s; however, it may also be taken for reasons of public safety, such as in the case of Centralia, Pennsylvania
Centralia, Pennsylvania
Centralia is a borough and ghost town in Columbia County, Pennsylvania, United States. Its population has dwindled from over 1,000 residents in 1981 to 12 in 2005, 9 in 2007, and 10 in 2010, as a result of a mine fire burning beneath the borough since 1962...
. Some jurisdictions require that the government body offer to purchase the property before resorting to the use of eminent domain.
Meaning
The term "eminent domain" was taken from the legal treatise, De Jure Belli et Pacis, written by the DutchNetherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
in 1625, who used the term dominium eminens (Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for supreme lordship) and described the power as follows:
"... The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."
Some U.S. states, including New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
and Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, use the term appropriation
Appropriation (economics)
Appropriation is a non-violent process by which previously unowned natural resources, particularly land, become the property of a person or group of persons. The term is widely used in economics in this sense...
as a synonym for the exercising of eminent domain powers.
Condemnation
The term "condemnation" is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government. This use of the word should not be confused with its sense of a declaration that property is uninhabitable due to defects. Condemnation via eminent domain indicates the government is taking ownership of the property or some lesser interest in it, such as an easementEasement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
. After the condemnation action is filed the amount of just compensation is determined. However, in some cases, the property owner challenges the action because the proposed taking is not for "public use", or the condemnor is not authorized to take the subject property, or has not followed the proper substantive or procedural steps as required by law.
Other Property
The exercise of eminent domain is not limited to real property. Governments may also condemn personal property, . Governments can even condemn intangible property such as contractContract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
rights, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s, trade secret
Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
s, and copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s. Even the taking of professional
Professional sports
Professional sports, as opposed to amateur sports, are sports in which athletes receive payment for their performance. Professional athleticism has come to the fore through a combination of developments. Mass media and increased leisure have brought larger audiences, so that sports organizations...
sports team's franchise has been held by the California Supreme Court to satisfy the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.
Constitution
The practice of condemnation was transplanted into the American colonies with the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. In the early years, unimproved land could be taken without compensation; this practice was accepted because land was so abundant that it could be cheaply replaced. When it came time to draft the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, differing views on eminent domain were voiced. Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
favored eliminating all remnants of feudalism
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
, and pushed for allodial ownership. James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
, who wrote the Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, had a more moderate view, and struck a compromise that sought to at least protect property rights somewhat by explicitly mandating compensation and using the term "public use" rather than "public purpose", "public interest", or "public benefit".
The Fifth Amendment imposes limitations on the exercise of eminent domain: the taking must be for public use and just compensation must be paid. Some historians have suggested that these limitations on the taking power were inspired by the need to permit the army to secure mounts, fodder and provisions from local ranchers and the perceived need to assure them compensation for such takings. Similarly, soldiers forcibly sought housing in whatever homes were near their military assignments. To address the latter problem, the Third Amendment
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...
was enacted in 1791 as part of the US Constitution's Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. It provided that the quartering of soldiers on private property could not take place in peacetime
Peacetime
In politics, peacetime is defined as any period of time where there are no violent conflicts occurring. For example, the time after World War II is considered peacetime in Western Europe and the United States....
without the landowner's consent. It also required that, in wartime
Wartime
The term wartime could refer to:* Wartime, Saskatchewan, a small community in Saskatchewan, Canada.* Wartime Station, Saskatchewan, a small community in Saskatchewan, Canada.* A formal state of war, as opposed to peacetime...
, established law had to be followed in housing troops on private property. Presumably, this would mandate "just compensation", a requirement for the exercise of eminent domain in general per the Fifth Amendment. All US states have legislation specifying ED procedures within their respective territories.
The power of governments to take private real or personal property has always existed in the United States, being an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, "...nor shall private property be taken for public use, without just compensation". The Fifth Amendment did not create the national government's right to use the eminent domain power, it simply limited it to public use.
The U.S. Supreme Court has consistently deferred to the right of states to make their own determinations of public use, although the reason why the constitutional term "public use" should not be subject to judicial interpretation, the same as other constitutional terms, has not been explained. In 1832 the Supreme Court ruled that eminent domain could be used to allow a mill owner to expand his dam and operations by flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit. In Clark vs. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of public use thus varied with the facts of the case. It ruled a farmer could expand his irrigation ditch across another farmer's land (with compensation), because that farmer was entitled to "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters... [is] a public use." Here in recognizing the arid climate and geography of Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, the Court indicated the farmer not adjacent to the river had as much right as the farmer who was, to access the waters. However, until the 14th Amendment was ratified in 1868, the limitations on eminent domain specified in the Fifth Amendment applied only to the federal government and not to the states. That view ended in 1896 when in the Chicago, Burlington & Quincy Railroad v. Chicago case the court held that the eminent domain provisions of the Fifth Amendment were incorporated in the Due Process Clause of the Fourteenth Amendment and thus were now binding on the states, or in other words, the states are required to take property for a public purpose and compensate the property owner for his loss. This was in-tune with the beginning of what is known as the "selective incorporation" doctrine.
An expansive interpretation of eminent domain was reaffirmed in Berman v. Parker (1954), in which the U.S. Supreme Court reviewed an effort by the District of Columbia to take and raze blighted structures, in order to eliminate slums in the Southwest Washington area. After the taking, held the court, the taken and razed land could be transferred to private redevelopers who would construct condominiums, private office buildings and a shopping center. The Supreme Court ruled against the owners of a non-blighted property within the area on the grounds that the project should be judged on its plans as a whole, not on a parcel by parcel basis. In Hawaii Housing Authority v. Midkiff
Hawaii Housing Authority v. Midkiff
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 , was a case in which the United States Supreme Court held that a state could use the eminent domain process to take land overwhelmingly concentrated in the hands of private landowners and redistribute it to the wider population of private...
(1984), the Supreme Court approved the use of eminent domain to transfer a land lessor's title to its tenants who owned and occupied homes built on the leased land. The court's justification was to break up a housing oligopoly, and thereby lower or stabilize home prices, although in reality, following the Midkiff decision, home prices on Oahu escalated dramatically, more than doubling within a few years.
The Supreme Court's decision in Kelo v. City of New London
Kelo v. City of New London
Kelo v. City of New London, 545 U.S. 469 was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development...
, 545 U.S. 469 (2005) affirmed the authority of New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. This 5-4 decision received heavy press coverage and inspired a public outcry that eminent domain powers were too broad. in reaction to Kelo, several states enacted or are considering state legislation that would further define and restrict the power of eminent domain. The Supreme Courts of Illinois, Michigan (County of Wayne v. Hathcock (2004)), Ohio (Norwood, Ohio v. Horney
Norwood, Ohio v. Horney
Norwood, Ohio v. Horney 110 Ohio St.3d 353 was a case brought before the Ohio Supreme Court in 2006. The case came upon the heels of Kelo v. City of New London, in which the United States Supreme Court ruled that commercial development justified the use of eminent domain...
(2006)), Oklahoma, and South Carolina have recently ruled to disallow such takings under their state constitutions.
The redevelopment in New London, the subject of the Kelo decision, proved to be a failure and as of the early 2010 (over four years after the court's decision) nothing has been built on the taken land in spite of the expenditure of over $80 million in public funds. The Pfizer
Pfizer
Pfizer, Inc. is an American multinational pharmaceutical corporation. The company is based in New York City, New York with its research headquarters in Groton, Connecticut, United States...
corporation, who would have been the primary beneficiary of the additional development, announced in 2009 that it would close its $300 million New London research facility, shortly before the expiration of its 10-year tax abatement agreement with the city. The facility was subsequently purchased in 2010 for just $55 million by General Dynamics Electric Boat.
American libertarians argue that eminent domain is unnecessary. Bruce L. Benson
Bruce L. Benson
Dr. Bruce L. Benson is an American academic economist who is widely recognized as an authority on law and economics and a major exponent of anarcho-capitalism legal theory. He is DeVoe L. Moore Professor and Distinguished Research Professor at Florida State University, where he serves as Chairman...
notes that utilities, for instance, have a variety of methods at their disposal, such as option contract
Option contract
An option contract is defined as "a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer." Restatement of Contracts § 25 ....
s and dummy buyers, to obtain the contiguous parcels of land needed to build pipelines, roads, and so forth. These methods are routinely used to acquire land needed for shopping malls and other large developments. Walter Block
Walter Block
Walter Edward Block is a free market economist and anarcho-capitalist associated with the Austrian School of economics.-Personal history and education:...
argues that the problem of recalcitrant landowners ("curmudgeons") who refuse reasonable offers for the sale of their land is solved in the long term by the fact that their failure to accumulate wealth through such trades will give them a relative disadvantage in attempting to accumulate more land. Thus, the vast majority of land will tend to fall into the control of those who are willing to make profitable exchanges.
Compensation
American courts have held that the preferred measure of "just compensation" is "fair market value", i.e., the price that a willing but unpressured buyer would pay a willing but unpressured seller for the subject property under ordinary circumstances, with both parties fully informed of the property's good and bad features. Also, this approach takes into account the property's highest and best use (i.e., its most profitable use) which is not necessarily its current use or the use mandated by current zoning if there is a reasonable probability of zone change.This approach has been severely criticized because it omits from consideration a variety of incidental economic losses that a taking of land inflicts on its owners. The most egregious example of such losses is provided by the American rule that denies any compensation to owners of businesses that are destroyed when land on which they are located is taken, and the business cannot relocate. A small minority of states have provided by statute that at least some business losses are compensable.
Also, attorneys' and appraisers' fees are not recoverable (except in Florida) so the owners of the taken property never recover the full value of the taken land, even if they prevail in the valuation trial, because a part of their recovery must be used to pay those lawyers and appraisers. Some states do provide for limited recovery of such litigation expenses, typically when the owners' recovery substantially exceeds the amount of the condemnor's pretrial offer or the evidence presented by the condemnor at trial by a specified percentage. Also, when a condemnation action is abandoned, the owners are typically entitled (by statute) to be paid reasonable attorneys' and appraisers' fee they had to incur in defending the condemnation action.
When payment of compensation is delayed, the owner of the taken land is entitled to receive interest on the award of compensation, that accrues from the time of taking to the time of payment.
The interest must be reasonable, so that when prevailing market rates of interest exceed the statutory rate (as in inflationary times), the former has to be used.
The U.S. Supreme Court takes the position that unlike the determination of what is a "public use," the determination of compensation is a judicial, not legislative, function, but legislatures are free to provide for more liberal awards of compensation than the constitutional minimum determined by courts.
In cases of partial takings of land, the owners are entitled to compensation for the taken part, plus severance damages (the diminution of value of what remains of their property after the taking). If the partial taking creates special benefits (i.e., it causes an increase in the value of the remaining land) their value is offset againt compensation, with the majority of states allowing such offsets only against severance damages, so the owner always gets paid for the taken land. When a partial taking impairs access to the remainder land, that gives rise to a contentious issue because courts take the position that diminution in value caused by impaired access is compensable only when the impairment is substantial. Traffic regulations that affect access (one-way streets, median dividers, etc.) are deemed exercises of the police power and are not compensable.
In addition to fee simple titles, all interests in property (easements, leaseholds, etc.) are compensable. The measure of value of a leasehold is the amount by which prevailing comparable rentals in the area exceed the actual contracted-for rent. This amount is known as "bonus value" of a lease. It is calculated over the remaining life of the lease and then reuced to its present value. The measure of compensation for an easement is the difference in the value of the subject land as unencumbered and as encumbered by the easement.
In determining value, zoning and other land-use regulations are considered, but if it appears that there is a reasonable probability of zone change to a higher use, that may be shown and in that case the owner is entitled to an additional increment of value (the extra amount over and above the value under current zoning, that the market would pay for the probability of rezoning).
The appraisal profession recognizes several different methods of calculating value, but courts are largely stuck in the conventional approach of using three valuation approaches: (a) market data analysis or comparable sales value, (b) the capitalization of rentals, and (c) the reproduction-less-depreciation approach under which the cost of reproducing the improvements on the propery is estimated and then depreciated to allow for wear and tear and functional or economic obsolescence. The value of the land is then added to the value of the reproduced, depreciated improvements. Some states allow compensation as the cost of reproduction without depreciation, but only in cases where the subject property, though privately owned, performs an important public or charitable function.
The U.S. Supreme Court has indicated (U.S. v. Cors) that it is not its intention to make a "fetish" out of market value as the measure of compensation, and that other approaches may be used when conventional methods do not work, or if applied, would create an injustice (Pewee Coal v. United States). These situations, however, are extremely rare.
Sudies in several parts of the country (California, Georgia, Minnesota, New York and Utah) have demostrate that condemning agencies frequetly undercompensate property owners, and that those owners who reject the pre-litigation offers and go to court tend to recover substantially higher awards, whether by judges or juries.
Tax implications
When private property is destroyed, stolen, condemned, or disposed of, the owner may receive a payment in property or money in the form of insurance or a condemnation award.If property is compulsorily or involuntarily converted into money (as in eminent domain) the proceeds can be reinvested without payment of capital gains tax provided it is reinvested in property similar or related in service or use to the property so converted, no capital gain shall be recognized.
Bush executive order
On June 23, 2006, the first anniversary of the Kelo decision (see above), PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
issued Executive Order 13406 which stated in Section I that the federal government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." The order limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken". However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the federal government.
Canada
In Canada, expropriation is governed by federal or provincial statutes. Under these statutory regimes, public authorities have the right to acquire private property for public purposes, so long as the acquisition is approved by the appropriate government body. Once property is taken, an owner is entitled to "be made whole" by compensation for: the market value of the expropriated property, injurious affection to the remainder of the property (if any), disturbance damages, business loss, and special difficulty relocating. Owners can advance claims for compensation above that initially provided by the expropriating authority by bringing a claim before the court or an administrative body appointed by the governing legislation.Europe
In many European nations, the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home, and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions.". Again, this is subject to exceptions where state deprivation of private possessions is in the general or public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
, is in accordance with law, and, in particular, to secure payment of tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
es. Settled case-law of ECHR provides that just compensation has to be paid in cases of expropriation.
France
In FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, the Declaration of the Rights of Man and of the Citizen
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
similarly mandates just and preliminary compensation before expropriation; and a Déclaration d'utilité publique
Déclaration d'utilité publique
A Déclaration d'utilité publique, or declaration of public utility, is a formal recognition that a proposed project has public benefits. Many large construction projects in France, especially relating to infrastructure, must achieve DUP before work can begin....
is commonly required, to demonstrate a public benefit.
Notably, in 1945, by decree of General Charles de Gaulle
Charles de Gaulle
Charles André Joseph Marie de Gaulle was a French general and statesman who led the Free French Forces during World War II. He later founded the French Fifth Republic in 1958 and served as its first President from 1959 to 1969....
based on the untried accusations of collaboration, the Renault
Renault
Renault S.A. is a French automaker producing cars, vans, and in the past, autorail vehicles, trucks, tractors, vans and also buses/coaches. Its alliance with Nissan makes it the world's third largest automaker...
company was expropriated from Louis Renault posthumously and nationalised as Régie Nationale des Usines Renault — without compensation.
United Kingdom
After his victory in 1066, William the Conqueror seized virtually all land in England. Although he maintained absolute power over the land, he granted fiefs to landholders who served as stewards, paying fees and providing military services. During the Hundred Years War in the 14th century, Edward IIIEdward III of England
Edward III was King of England from 1327 until his death and is noted for his military success. Restoring royal authority after the disastrous reign of his father, Edward II, Edward III went on to transform the Kingdom of England into one of the most formidable military powers in Europe...
used the Crown's right of purveyance
Purveyance
Purveyance is the right of the Crown to requisition goods and services for royal use, and was developed in England over the course of the late eleventh through the fourteenth centuries. In theory, the king's prerogative allowed him to collect goods needed for both household and military use, but...
for massive expropriations. Chapter 28 of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
required that immediate cash payment be made for expropriations. As the king's power was broken down in the ensuing centuries, tenants were regarded as holding ownership rights rather than merely possessory rights over their land. In 1427, a statute was passed granting commissioners of sewers in Lincolnshire
Lincolnshire
Lincolnshire is a county in the east of England. It borders Norfolk to the south east, Cambridgeshire to the south, Rutland to the south west, Leicestershire and Nottinghamshire to the west, South Yorkshire to the north west, and the East Riding of Yorkshire to the north. It also borders...
the power to take land without compensation. After the early 16th century, however, Parliamentary takings of land for roads, bridges, etc. generally did require compensation. The common practice was to pay 10 per cent more than the assessed value. However, as the voting franchise was expanded to include more non-landowners, the bonus was eliminated.
Allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
is the title to land generally held in fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
by an individual or group that is sovereign on that land. Thus, in English law, only the monarch holds allodial title. All others are tenants of the sovereign through their feudal vassal
Vassal
A vassal or feudatory is a person who has entered into a mutual obligation to a lord or monarch in the context of the feudal system in medieval Europe. The obligations often included military support and mutual protection, in exchange for certain privileges, usually including the grant of land held...
ages. Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through right of conquest
Right of conquest
The right of conquest is the right of a conqueror to territory taken by force of arms. It was traditionally a principle of international law which has in modern times gradually given way until its proscription after the Second World War when the crime of war of aggression was first codified in the...
.
In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, and other jurisdictions that follow the principles of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, the related term compulsory purchase is used. The landowner is compensated with a price agreed or stipulated by an appropriate person. Where agreement on price cannot be achieved, the value of the taken land is determined by the Lands Tribunal
Lands Tribunal
The Lands Tribunal is a tribunal in the United Kingdom created by the Lands Tribunal Act 1949 that has jurisdiction in England and Wales and Northern Ireland, although in the Northern Ireland context the term Lands Tribunal normally refers to a different body the Lands Tribunal for Northern Ireland...
, a court consisting of one barrister and two chartered surveyors
Chartered Surveyor
Chartered Surveyor is the description ofProfessional Members and Fellows of the RICS entitled to use the designation in Commonwealth countries and Ireland...
. The operative law is a patchwork of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, the Compulsory Purchase Act 1965, the Land Compensation Act 1973, the Acquisition of Land Act 1981, part IX of the Town and Country Planning Act 1990
Town and Country Planning Act 1990
The Town and Country Planning Act 1990 is an act of the British Parliament regulating the development of land in England and Wales-Section 1:...
, the Planning and Compensation Act 1991
Planning and Compensation Act 1991
The Planning and Compensation Act 1991 was an Act of Parliament in the United Kingdom to amend the law relating to town and country planning;*to extend the powers to acquire by agreement land which may be affected by carrying out public works;...
, and the Planning and Compulsory Purchase Act 2004
Planning and Compulsory Purchase Act 2004
The Planning and Compulsory Purchase Act 2004 is an Act of the Parliament of the United Kingdom. It was promoted by the Office of the Deputy Prime Minister...
.
Germany
The Basic Law for the Federal Republic of GermanyBasic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
states in its Article 14 (3) the "an expropriation is only allowed for the public good" and just compensation must be made. It also provides for the right to have the amount of the compensation checked by a court.
Italy
Esproprio, or more formally espropriazione per pubblica utilità (literally "expropriation for public utility") in ItalyItaly
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
takes place within the frame of civil law
Civil law (area)
Civil law in continental law is a branch of law which is the general part of private law.The basis for civil law lies in a civil code. Before enacting of codes, civil law could not be distinguished from private law...
. The law regulating expropriation is the D.P.R. n.327 of 2001, amended by D.Lgs. n.302 of 2002; it supersedes the old expropriation law, the Royal Decree n.2359 of 1865. Also other national and regional laws may apply. The general provisions for the expropriation stem from article 42 of the Italian Constitution
Constitution of Italy
The Constitution of the Italian Republic was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended 13 times, was promulgated in the extraordinary edition of Gazzetta Ufficiale No. 298 on 27 December 1947...
and article 834 of the Codice Civile. Expropriation can be total (the whole property is expropriated) or partial; permanent or temporary.
Nazionalizzazione ("nationalization"), instead, is provided for by article 43 of the Constitution; it transfers to governmental authority and property a whole industrial sector, if it is deemed to be a natural or de facto monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
, and an essential service of public utility. The most famous nationalization in Italy was the 1962 nationalization of the electrical power sector
Enel
Enel may refer to:*Enel SpA, an Italian electricity company*Enel , a fictional villain in the One Piece manga and anime series*Enel, meaning third in the fiction of J. R. R. Tolkien, cf. Awakening of the Elves...
.
Australia
In Australia, section 51(xxxi) of the Australian ConstitutionConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
permits the Commonwealth Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws." This has been construed meaning that just compensation may not always include monetary or proprietary recompense, rather it is for the court to determine what is just. It may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated.
Property subject to resumption is not restricted to real estate as authority from the Federal Court
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
has extended the states' power to resume property to any form of physical property. For the purposes of section 51(xxxi), money is not property which may be compulsorily acquired.. A statutory right to sue has been considered "property" under this section.
The Commonwealth must also derive some benefit from the property acquired, that is, the Commonwealth can "only legislate for the acquisition of Property for particular purposes". Accordingly, the power does not extend to allow legislation designed merely to seek to extinguish the previous owner's title. The states and territories' powers of resumption on the other hand are not so limited. The section 43(1) of the Lands Acquisition Act 1998 (NT) grants the Minister the power to acquire land 'for any purpose whatever'. The High Court of Australia interpreted this provision literally, relieving the Territory government of any public purpose limitation on the power. This finding permitted the Territory government to acquire land subject to Native Title, effectively extinguishing the Native Title interest in the land. As noted by Kirby J in dissent and a number of commentators, this represents a missed opportunity to comment on the exceptional nature of powers of resumption exercised in the absence of a public purpose limitation.
The term resumption is a reflection of the fact that, as a matter of Australian law, all land was originally owned by the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
before it was sold, leased or granted and that, through the act of compulsory acquisition, the Crown is "resuming" possession.
- 1991 - New South Wales
- 1993 - Tasmania
Chile
Art. 19, Nº 24, of the Chilean Constitution establishes that, "No one, in any case, can be deprived of its ownership, the property of such ownership or any of the essential attributes or faculties of the ownership, except by a general or special law that authorizes the expropriation by the cause of public utility or national interest, as qualified by the legislator. The expropriated will be able to claim over the legality of the expropriatorial act before regular Courts and will always have the right to an indemnification for the patrimonial damage effectively caused, which will be established by an amiable agreement o by a sentence handed down according to law for said Courts."The vast majority of expropriated owners accept the amount of the indemnification, which usually is in line with real estate market values.
India
The Constitution originally provided for the right to propertyRight to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
under Articles 19 and 31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of property'. Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been 'taken possession of or acquired' for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's 'eminent domain' powers.
The provisions relating to the right to property were changed a number of times. The 44th amendment act of 1978 deleted the right to property from the list of Fundamental Rights. A new article, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus, if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisation of the economy and the Government's initiative to set up special economic zones have led to many protests by farmers and have opened up a debate on the reinstatement of the fundamental right to private property.
Pakistan
Under the Land Acquisition Act, 1894, the government has the power to compulsorily acquire private land at the prevailing market rate for public purposes such as roads, highways, railways, dams, airports, etc.Other countries
Many countries recognize eminent domain to a much lesser extent than the English-speaking world or do not recognize it at all. JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport
Narita International Airport
is an international airport serving the Greater Tokyo Area of Japan. It is located east of Tokyo Station and east-southeast of Narita Station in the city of Narita, and the adjacent town of Shibayama....
, and the disproportionately large amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave, one well-known recent case being that of Roppongi Hills
Roppongi Hills
is a New Urban Centre and one of Japan's largest integrated property developments, located in the Roppongi district of Minato, Tokyo.Constructed by building tycoon Minoru Mori, the mega-complex incorporates office space, apartments, shops, restaurants, cafés, movie theaters, a museum, a hotel, a...
.
There are other countries such as the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
that practice eminent domain whenever it is convenient to make space for new communities and government structures. Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
practices eminent domain under the Land Acquisitions Act which allows it to carry out its Selective En bloc Redevelopment Scheme
Selective En bloc Redevelopment Scheme
The Selective En bloc Redevelopment Scheme, or SERS for short, is an urban redevelopment strategy employed by the Housing and Development Board in Singapore in maintaining and upgrading public housing flats in older estates in the city-state...
for urban renewal. The Amendments to the Land Titles Act allowed property to be purchased for purposes of urban renewal against an owner sharing a collective title if the majority of the other owners wishes to sell and the minority did not. Thus, eminent domain often invokes concerns of majoritarianism
Majoritarianism
Majoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
.
Since the 1990s, the Zimbabwe
Zimbabwe
Zimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...
an government under Robert Mugabe
Robert Mugabe
Robert Gabriel Mugabe is the President of Zimbabwe. As one of the leaders of the liberation movement against white-minority rule, he was elected into power in 1980...
has seized a great deal of land and homes of mainly white farmers in the course of the land reform movement in Zimbabwe
Land reform in Zimbabwe
Land reform in Zimbabwe officially began in 1979 with the signing of the Lancaster House Agreement, an effort to more equitably distribute land between the historically disenfranchised blacks and the minority-whites who ruled Zimbabwe from 1890 to 1979...
. The government argued that such land reform was necessary to redistribute the land to Zimbabweans dispossessed of their lands during colonialism
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
.
Examples
- Controversy on the Delaware: A Look Upstream at the Tocks Island Dam ProjectControversy on the Delaware: A Look Upstream at the Tocks Island Dam ProjectControversy on the Delaware: A Look Upstream at the Tocks Island Dam Project is a video documentary that investigates the Tocks Island Dam Project, a plan proposed in 1965 for the United States Army Corps of Engineers to build a dam across the Delaware River six miles upstream from the Delaware...
- United States v. Carmack
- United States v. Gettysburg Electric Railway Company
- Berman v. ParkerBerman v. ParkerBerman v. Parker, is a landmark decision of the United States Supreme Court that interpreted the Fifth Amendment's Takings Clause: "nor shall private property be taken for public use, without just compensation" in the Fifth Amendment of the United States Constitution. The court voted 8-0, holding...
, - Hawaii Housing Authority v. MidkiffHawaii Housing Authority v. MidkiffHawaii Housing Authority v. Midkiff, 467 U.S. 229 , was a case in which the United States Supreme Court held that a state could use the eminent domain process to take land overwhelmingly concentrated in the hands of private landowners and redistribute it to the wider population of private...
, - Norwood, Ohio v. HorneyNorwood, Ohio v. HorneyNorwood, Ohio v. Horney 110 Ohio St.3d 353 was a case brought before the Ohio Supreme Court in 2006. The case came upon the heels of Kelo v. City of New London, in which the United States Supreme Court ruled that commercial development justified the use of eminent domain...
- Kelo v. City of New LondonKelo v. City of New LondonKelo v. City of New London, 545 U.S. 469 was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development...
In popular culture
As a controversial issue, compulsory acquisition has been a feature of movies and other pieces of fiction for many years.Instances of compulsory acquisition in literature and films include The Hitchhiker's Guide to the Galaxy
The Hitchhiker's Guide to the Galaxy
The Hitchhiker's Guide to the Galaxy is a science fiction comedy series created by Douglas Adams. Originally a radio comedy broadcast on BBC Radio 4 in 1978, it was later adapted to other formats, and over several years it gradually became an international multi-media phenomenon...
, where first Arthur Dent's home is acquired for the building of a bypass road and then the Earth is acquired (demolished) to make way for a hyperspace bypass; and The Castle
The Castle (film)
The Castle is a 1997 Australian comedy film directed by Rob Sitch. It starred Michael Caton, Anne Tenney, Stephen Curry, Sophie Lee, Eric Bana and Charles 'Bud' Tingwell. The screenwriting team comprised Sitch, Santo Cilauro, Tom Gleisner and Jane Kennedy of Working Dog Productions.The Castle was...
, an Australian film, where the Kerrigans' home is sought to be acquired to allow for an airport extension.
In Stephen King
Stephen King
Stephen Edwin King is an American author of contemporary horror, suspense, science fiction and fantasy fiction. His books have sold more than 350 million copies and have been adapted into a number of feature films, television movies and comic books...
's novel Roadwork
Roadwork
Roadwork is a novel by Stephen King, published in 1981 under the pseudonym Richard Bachman as a paperback original. It was collected in 1985 in the hardcover omnibus The Bachman Books, which is no longer in print...
, published in 1981, the protagonist's house is purchased to make way for a road extension.
Further reading
- Dana Berliner, Opening the Floodgates; Eminent Domain Abuse in a Post-Kelo World, Institute for Justice, June 2006. Available online http://castlecoalition.org/publications/floodgates/index.html.
- California Eminent Domain Report, Nossaman LLP, Launched October 2009 continuously updated. Available online http://www.californiaeminentdomainreport.com
- Redevelopment Wrecks; 20 Failed Projects Involving Eminent Domain Abuse, Institute for Justice, June 2006. Available online http://castlecoalition.org/publications/redevelopment-wrecks/index.html.
- Myths and Realities of Eminent Domain Abuse, Institute for Justice, June 2006. Available online http://castlecoalition.org/pdf/publications/CC_Myths_Reality%20Final.pdf.
- Steven Greenhut, Abuse Of Power: How The Government Misuses Eminent Domain, Seven Locks Press, June, 2004, trade paperback, 312 pages, ISBN 1-931643-37-7
- Joshua U. Galperin, A Warning To States, Accepting this Invitation May be Hazardous to Your Health (Safety and Public Welfare): An Analysis of Post-Kelo Legislative Activity. 31 Vermont Law Review 663 (2007).
- Aaron Pirnack, So Long, and Thanks for Playing: Small Business Fair Compensation and Eminent Domain
- Dana Berliner, Public Power, Private Gain, Institute for Justice, April 2003. Available online http://www.castlecoalition.org/report/index.shtml.
- A.J. Hazarabedian, California Eminent Domain Handbook, California Eminent Domain Law Group, June 2005. Available free online http://www.eminentdomainlaw.net/propertyguide.html.
- John Ryskamp, The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch, New York: Algora Publishing, 2006.
- Just Compensation, A Monthly Report on Condemnation Cases, Gideon Kanner, Editor, Published monthly since 1957.
- Property Owners' Rights Handbook: Your Rights and Remedies Under the Eminent Domain Law, Sullivan, Workman & Dee, LLP, 2005. Available online http://www.eminentdomain-law.com/pracAreas/eminentdomainprofessionals/ownersRights.html.
- Bulldozed: 'Kelo,' Emiment Domain and the American Lust for Land, Carla T. Main, Encounter Books, August 2007.
- NCSL: Eminent Domain. Available online http://www.ncsl.org/programs/natres/EMINDOMAIN.htm
- NCSL: State Case Law Prohibiting Eminent Domain for Economic Development, August 2005. Available online http://www.ncsl.org/programs/natres/emindomaincase.htm
- New Jersey Eminent Domain Law http://njeminentdomain.com
- Blog, www.Gideonstrumpet.info