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Eminent domain

Eminent domain (US), compulsory purchase (United Kingdom, New Zealand, Republic of Ireland), compulsory acquisition (Australia) or expropriation (Canada, South Africa) in common law legal systems is the lawful power of the state to expropriate private property without the owner's consent, either for its own use or on behalf of a third party. The term eminent domain is used primarily in the United States, where the term was derived in the mid-19th century from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. The term compulsory purchase, also originating in the mid-19th Century, is used primarily in England and Wales, and other jurisdictions that follow the principles of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign.

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.

Some coined the term expropriation to refer to "appropriation" under eminent domain law, and may especially be used with regard to cases where no compensation is made for the confiscated property. Examples include the 1960 Cuban expropriation of property held by U.S. citizens, following a breakdown in economic and diplomatic relations between the Eisenhower Administration and the Cuban government under Fidel Castro. U.S. nationals and corporations held vast amounts of Cuba's prime real-estate. Cuban authorities offered just compensation for US properties, as they had successfully done for Spanish, British and French properties when they nationalized private property in Cuba, for the common good. However, U.S. authorities refused, adhering to the notion that those properties are still privately owned by U.S. interests forty five years later. This is in direct contrast with recent rulings by the US Supreme Court which allows a corporation to displace a private citizen from his/her realty, if the corporate development is considered to be in the best interest of the municipality.

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 on grounds of health and safety hazards or gross zoning violation usually does not deprive the owner of the property condemned but requires the owner to rectify the offending situation.

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).
Contents

* 1 Origins
* 2 Allodial vs Feodal Title
* 3 United States

Origins

The power of eminent domain in English law derives from the form of real property. Many landowners assume that their property right is absolute under the law, but this is rarely the case. Instead, a county or other authority has created the property in fee simple, a concept that derives from feudal fiefs. The same authority may void (or condemn) the fee and seize the land, as when a landowner fails to pay property tax. According to William Blackstone,

"The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure. ... Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands."

English-speaking countries that never had the feudal system have perpetuated the system of fee-simple property, including the power of eminent domain, for legal continuity, primarily because, as former colonies of the British Empire, their land were at one time conquered by the British monarchy, giving the monarchy Allodial Title to that land.

Allodial vs Feodal Title

Allodial Title is the title to land generally held in freehold, 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 vassalages. Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through Right of conquest. In this respect, while colonial American land grants were typically feudal grants in fee-simple, the victory of the American cause in the Revolutionary War is considered an act of conversion to allodial title, such that the King was no longer the sovereign of the colonies, however the new holders in this case are the several states that engaged in the revolution, and it is upon this basis that the practice of fee-simple titles is continued in the United States. This is an issue of dispute by right wing groups, however, with some individuals occationally attempting to patent allodial titles to their land. Some states, namely Nevada have instituted an Allodial Title Program in which property owners can purchase Allodial Title to their land essentially by paying an amount discounted from the sum of all future property taxes for the term of the owners life expectancy.

United States

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 the property be taken for "public use". These requirements are sometimes called the "takings clause." Most courts have used "just compensation" to be the fair market value of the condemned property. Over the years the definition of "public use" has expanded to include economic development plans which use eminent domain seizures to enable commercial development for the purpose of improving the community. [1] Critics contend this perverts the intent of eminent domain law and damages personal property rights.

The current Supreme Court understanding dates back to Justice O'Connor's Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)[2] decision. Supporters contend that it is necessary to the improvement of communities in many situations in which transactions costs will prevent private parties from reaching efficient use of land. This was generally affirmed by the Susette Kelo, et al. v. City of New London, Connecticut, et al., 125 S. Ct. 2655 (2005)[3], more commonly Kelo v. City of New London decision, however the justices recognised that the several states have the authority to pass statutes or state constitutional amendments further restricting eminent domain if they so choose. Many have taken up the challenge, with Alabama, New Hampshire, and several other states passing temporary statutes as well as constitutional amendments to restrict eminent domain strictly to uses in which the property will be owned by a government entity. Conversely, some other communities have taken Kelo as a license to seize at will.

In Calder v. Bull, 3 U.S. 386 (1798), Justice Samuel Chase thought it was preposterous for the government to take one person's property with no restriction and give it to another private party for their own profit.

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 [4], a community group in Boston, Massachusetts, which attained the right to eminent domain and has used it to reclaim vacant properties for the purpose of positive community development.

In the United States the use of eminent domain has been a powerful driver in the development of the country and its defense structure, enabling connections to be created that would have been unlikely without its use. In the last century it was a tool that enabled the construction of the many defense installations during World War II and the Cold War. Beginning in the early 1950's the Interstate Highway System began and eminent domain was used to purchase the 42,000+ miles of rights of way needed for construction. Without eminent domain the Interstate would never have been built out to its current extent. Its use has until recently been almost totally used for such public works, additionally including ports and airports and government complexes nationwide.

The abuses of the exercise of these powers in the past have led to substantial safeguards to the public today, including extensive requirements to force the various governments units that use eminent domain to document the need for it and allow the public access to and comment on the proceedings before the real property can be "taken". Federal statutes require complete relocation programs to be administered by the various states in order to receive Federal participation in the costs of the improvements (often 80%) and further require full certification that the public process and benefits were offered to the "claimants" and that the benefits were actually paid to the correct claimants and displacees. The use of eminent domain has slowed dramatically nationwide as the full build-out of the Interstate System approaches and reflects the fact that needs in the future will be for mostly projects of a local nature, such as schools, local highways and other such improvements. The extensive use of eminent domain for such purposes as economic development are currently under attack in many jurisdictions and a rush to pass state statutes to limit this use is being contemplated in more than 30 states as this is being written in December 2005. Governor Richardson of New Mexico became the first governor to veto eminent domain reform legislation resulting from this recent surge in public interest.[5]