What Are the Limitations of Eminent Domain?

What are the limitations of eminent domain? This is an important question to ask if you or someone you know is involved in an eminent domain case. Eminent domain cases are typically very controversial. It is the government exercising its power, although limited, to commandeer private property for the use of the public. If you are wondering how it works or what your legal rights are under this rule, you should consult an experienced eminent domain attorney.

What Is Eminent Domain?

Eminent domain is a legal process that permits the government to take over private property for public use. This can happen, even if the owner refuses to sell the property. However, the government is restricted by the 5th Amendment of the U.S. Constitution and Article 1, Section 13 of the South Carolina Constitution. The government’s power to take over private property is limited by:

• Just compensation. Owners must be paid just compensation for their property. Compensation is often based on fair market value, which can be calculated by taking sales comparisons, income, or the costs to replace the property.
• Due process. Owners cannot be deprived of their property without due process.
• Private use. Property can only be taken for public use under eminent domain. It can never be for private use unless the owner consents.
• Public use. Only public use is allowed. Typical reasons for eminent domain include projects like bridges or roads.

Abuse of Eminent Domain

Eminent domain can be abused when citizens’ homes are taken without due process and/or just compensation. It can also be abused when a homeowner or business owner sells their property under threat of condemnation. The threat of eminent domain can influence people in their negotiations. Negotiation that is truly voluntary can be difficult to achieve when one party has the power to get the outcome it wants. If the government can take any property for public use, owners have limited negotiating power.

Government officials should use eminent domain as a last resort if a sale price cannot be agreed upon. Having a lawyer with you throughout the negotiation process can help you find a fair price.

Challenging Eminent Domain

Eminent domain can be difficult to challenge. There are specific things you can do, but they don’t guarantee success. For example, if you think that the government’s offer is below market value or otherwise unfair, you could hire an independent appraiser. This can give you a second opinion of the value of the property and provide you with room to negotiate the sale price.

FAQs

Q: How Is Fair Market Value Determined?

A: Fair market value can be determined in a few different ways. One way is to look at comparable sales in the area and come to a reasonable value. Another way is simply taking what the buyer is willing to pay the seller based on having reasonable knowledge of the property’s location, condition, and any other factors deemed relevant. In many cases, the government will hire an appraiser to assess the property’s value. Property owners are permitted to hire their own appraiser for a second opinion.

Q: What Limits Does the Constitution Place on Eminent Domain?

A: The Constitution limits the government from enacting eminent domain in a few significant ways. One way is that the government is prohibited from seizing property for private use. Owners should only have to give up their property for public use. Another limitation is that property owners must be justly compensated for their property. Just compensation can be equal to the fair market value of the property. Each owner must also be given due process of law.

Q: Can I Stop the Government From Taking My Property?

A: You may be able to stop the government from taking your property with the help of an experienced lawyer. A lawyer can hold the government accountable to the standards of eminent domain. This means that the government must justly compensate you, provide you with due process, and use the property for public use. In many cases, if the government satisfies these requirements, there is little that can be done to stop it. The positive is that you will be compensated for this process.

Q: How Can an Eminent Domain Lawyer Help Me?

A: An eminent domain lawyer can help in several ways. A lawyer can first evaluate the offer you receive for your property and determine if it is just. They can also be a trusted resource to ensure that you get the just compensation you deserve. You should be compensated for:

• The property’s value
• The fixtures and improvements of the property
• Any damages done to the property
• Relocation expenses

A lawyer can help you negotiate this offer with the government.

Q: How Long Can an Eminent Domain Case Last in South Carolina?

A: Eminent domain cases in South Carolina can last for varying amounts of time. There are several factors to consider. The complexity of the legal case will be a major determining factor. Each case is unique and presents its own specific challenges. The process of completing an eminent domain case can be lengthy and usually includes multiple steps. To get your case resolved as quickly as possible, you should engage the help of an experienced eminent domain lawyer.

A Legal Team That Is Ready to Support You

Understanding eminent domain can be difficult without experienced legal support. There are South Carolina state laws, along with federal laws, that must be adhered to. Due to the legal complexity of these cases, an attorney is often needed to guide you through the process. A skilled and knowledgeable attorney could make the difference in your case. Whether you want to fight to keep your property or you believe that you deserve a larger compensation offer, an attorney can help you accomplish it.

At Mack & Mack Attorneys, our legal team is ready and able to assist you through this process. Our firm has been representing South Carolina residents for over 85 years. With our combined legal experience, you can trust that you’re getting the quality legal representation you deserve. Contact us today at our office, conveniently located in Fort Mill, to speak with a member of our team.