May 20, 2016
Most people have a general understanding of the concept of Eminent Domain. However, the knowledge that the government can take your land isn’t all that helpful when you are faced with an imminent taking of your property. Knowing the requirements for a government entity to follow in order to legally condemn property may help you to navigate your real estate issue, and ultimately result in you making the most of an unpleasant situation.
What is Eminent Domain?
According to the Pennsylvania Constitution, the government is empowered, by virtue of its sovereignty, to condemn private land for public use. This is Eminent Domain. Article 1, Section 10 provides, in pertinent part that “[n]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” Public use has been found to include highways, roads, schools, public buildings, and the elimination of blight.
Unfortunately, because of the constitutional basis for this power, stopping the taking of land in an eminent domain situation, if it is indeed for public use, is highly unlikely. The bulk of litigation in eminent domain real estate disputes stems from what amount of compensation is just.
How long does Eminent Domain take?
In the case of Eminent Domain, the condemnor (the party taking the land under Eminent Domain), after determining that a property is needed for a particular plan, may attempt to buy the property in lieu of condemnation. If, however, this attempt is unsuccessful, in order to begin the condemnation proceeding, the government must first file a written declaration of taking and on the same day lodge a notice of the declaration with the Recorder of Deeds.
The condemnor has 30 days from that point to provide notice to the property owner of the planned taking. This starts the ball rolling on the property owner’s end because the property owner then has 30 days to challenge the taking.
Within 30 days of the notice of taking, the property owner may file preliminary objections or lose the ability to challenge the taking legally. The ability to challenge the taking is also limited by statute in Pennsylvania to the following issues:
- The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
- The sufficiency of the security.
- The declaration of taking.
- Any other procedure followed by the condemnor.
If 30 days pass and no preliminary objections are filed, the condemnor is entitled to possession of the property upon either payment of just compensation, or the offer to pay just compensation.
What is just compensation under Eminent Domain?
The Eminent Domain Code in Pennsylvania defines just compensation as the difference between the fair market value of the property owner’s (condemnee’s) entire property interest immediately before the condemnation and the fair market value of the property interest immediately after the condemnation. And while this seems like it is a cut and dry formula, it is open to negotiation and interpretation.
If your property has been subject to Eminent Domain, and you believe that the value offered by the government is not just, as is constitutionally required, there are procedures in place to challenge the value to which you are entitled.
It is important to recognize that even though the condemnor is likely far more experienced in the nuances of the eminent domain process, you are not required to sit passively and accept everything without challenge.
While this blog only skims the surface of the complicated real estate law issue of eminent domain, if you believe your land has been taken by the government, even if no declaration of taking has been filed, or that you have not been offered fair value for your property, seek guidance from an experienced real estate attorney to protect your interests.
For more information feel free to contact us at (610) 275-0700 or by email at firstname.lastname@example.org
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.