Eminent domain


In law, eminent domain is the power of the state to appropriate private property for its own use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.

In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

The term "expropriation" is often seen as synonymous with "eminent domain" and may especially be used with regard to jurisdictions that do not pay compensation for the confiscated property. A noted example is the 1960 Cuban expropriation of property held by U.S. citizens, following the imposition of measures hostile to the recently-installed Castro regime.

The term "condemnation" is used to describe the act of a government exercising its authority of eminent domain. It is not to be confused with the term of the same name that describes the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects. Condemnation via eminent domain indicates the government is taking the property; usually, the only thing that remains to be decided is the amount of just compensation. Condemnation of buildings usually occurs through health and safety hazards or gross zoning violation. In this case, the owner of the property does not lose the property, he or she merely needs to make corrections to the property to bring it up to health, safety and/or zoning codes.

The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).

In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. Over the years the definition of "public use" has expanded to include economic development schemes which use eminent domain to displace private homes and businesses in order to transfer it to private developments that are more profitable. In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent set by Berman v. Parker, 348 U.S. 26 ( 1954), permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004, as precedent. This expansion of the definition was brought before the United States Supreme Court in the fall of 2004, in Susette Kelo et al. v. City of New London et al. being argued in February 2005. A decision is pending.

In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative, a community group in Boston who attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.

In many European nations, the European Convention on Human Rights 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 public interest, is in accordance with law, and, in particular, to secure payment of taxes.

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation .

In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is more commonly used.

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