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Eminent Domain- Top 10 Commonly Asked Questions

Posted by Amy Hayes | Apr 24, 2022 | 0 Comments

1.  What is the power of eminent domain? What is condemnation?

    The power of eminent domain entitles governmental entities to take private property  and convert it to public uses, such as highways, public transportation and schools. Governmental entities exercise their power of eminent domain through condemnation, which is the legal process for the taking of property.

   2.  Who has the power of eminent domain?    

The power of eminent domain resides in federal and state governments. The federal and state governments can delegate the power to lesser entities, such as counties, cities, transportation districts, water districts and school districts. In some instances, the government can delegate its power of eminent domain to private entities, such as railroads and utilities.

3.  How much of my property can or must the government take?

The government can take only as much property as it can justify for the particular public use. Similarly, it is not required or permitted to acquire a whole parcel of property if only part of the parcel is necessary for the public use.

 4.   What is an acceptable public use? Who decides?

The United States Supreme Court has defined what is an acceptable public use very broadly to encompass not only traditional public uses such as roads and schools, but also economic development—i.e., taking property from one private owner and then conveying it to another private owner for the purpose of developing the property in  accordance with the development goals of the government. Most states, including Oklahoma, have narrowed state law on what is an acceptable public use. Ultimately, a judge may be called upon to decide if the desired use of the property by the  government meets the public-use standard.

5. What is just compensation? 

When the government takes private property for a public use, it is 
constitutionally required to pay the property owner “just compensation” for the 
property. Just compensation embodies the fundamental idea that one private property 
owner should not shoulder an unfair share of the burden of providing for public uses. 

6. How is just compensation determined?

Just compensation is the amount of money necessary to make whole a property 
owner for the taking of his or her property. This amount is determined by the fair 
market value of the highest and best use of the property taken by the government, plus, 
in the case of a partial taking, the reduction in fair market value to the remainder of the 
property. For example, if the government takes part of your property for a highway 
project, it must compensate you for the property it physically took, as well as for the 
diminished value of your remaining property based on its proximity to a highway. 

7.  What is fair market value?

In normal market conditions, fair market value is generally defined by what a 
willing buyer would pay a willing seller for the property at the time of the acquisition 
or taking.

8.  What is highest and best use?

The highest and best use of real property is the most profitable use of the 
property. It can be a use other than the current use of the property if it is reasonably 
probable that the property has an actual potential for a higher and better use. For 
instance, if the property currently has a residential structure on it but, under current or 
reasonably imminent zoning laws, it could be developed as a retail shopping center, 
redevelopment as a retail shopping center is most likely its highest and best use.

9.What is included in the determination of just compensation? What is 
     not included?

In the typical condemnation matter, in which the government is taking the whole 
or part of a parcel of real property, you are entitled to just compensation for: (1) the real 
property taken and the effects to remaining real property; and (2) fixtures (personal 
property that is considered part of the real property). You may also qualify for just 
compensation if the government takes from you permanent or temporary easements, or 
deed restrictions. 

On the other hand, a property owner is not typically entitled to just 
compensation for: (1) private property that can be removed from the real property; (2) 
the costs of relocating a home or a business; and (3) loss in value to business—i.e., the 
value attached to a business being in the same place for 20 years, reduced revenue, etc. 
Certain relocation and business reestablishment costs, however, qualify for 
“reimbursement” under federal and state law. 

10.  Who determines just compensation?

The government will typically employ an appraiser to render an opinion of value 
of the property it intends to take. This is usually the basis for the government's initial 
“offer.” The property owner will also typically employ an appraiser, in addition to
formulating his or her own opinion of value. 
The final amount of just compensation may be reached either in pre-trial 
negotiations or after a jury renders its verdict. In the latter case, subject to a judge's 
instructions on the law, the jury will have the final say as to what constitutes just 
compensation for private property.

For all questions related to eminent domain, call Hayes Legal Solutions, PLLC We represent landowners and business owners in obtaining the highest value possible for their property. Call/Text Hayes Legal Solutions, PLLC to set up you appointment today at 405-635-5578.

About the Author

Amy Hayes

Hayes Legal Solutions, PLLC is owned by Amy Hayes, she is also known by some as Amy Hayes-Thompson. She has been licensed to practice law in Oklahoma since 2003. Amy started Hayes Legal Solutions to make legal services more accessible and affordable to Oklahomans. Family Law, LGBTQ Family Law, Real Estate Law, Oil &Gas Law, Small Business Contracts, and Renewable Energy Law are her primary practice areas.


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