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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 45 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).

Origins

The power of eminent domain in English law derives from the form of real property. Some people assume that land ownership is absolute under the law so long as the property is maintained, 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 lords 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 occasionally 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. * Critics contend this damages personal property rights.

Public Use

The current Supreme Court understanding dates back to 1984 when Justice O'Connor held in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) that Hawaii's redistribution of land passed constitutional muster. One must understand what the High Court had held as "public" in public use; for local government in zoning cases as in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) and in city urban renewal projects like in Berman v. Parker, 348 U.S. 26 (1954) public use was quite expansive. O'Connor tried to craft an opinion which allowing for the state's actions, tried to limit incentives for expansive views of public use. In an earlier case Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Justice Thurgood Marshall struck a blow for private property ruling that because the cable TV company's use of the property owner's building (landlord Loretto) was not a public use even using an inch of the exterior of the building trenched upon the owner's Fifth Amendment "takings clause" rights and held the cable TV company use of that tiny part to be unconstitutional.

The current rule on public use upholding the eminent domain power of state government was generally affirmed by Kelo v. City of New London, 125 S. Ct. 2655 (2005), though the justices recognised that the several states have the authority to pass statutes or state constitutional amendments further restricting eminent domain by either defining "public use" narrowly in their states or by granting property owners more rights than the federal Constitution if they so chose. 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.

Economic argument of hold outs

Supporters contend that seizures of private property are necessary to the improvement of communities in many situations in which transactions costs will prevent private parties from reaching efficient use of land. However, when the use to which the condemnation process was done for is in reality a private use, one wonders if O'Connor succeeded (as her dissent in the next case beiles). In Calder v. Bull, , 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 *, 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. It has until recently been almost totally used for such public works, additionally including ports and airports and government complexes nationwide.

Nuisance law

When a property owner's use is improper, the state under its broad police power may ban it as in Hadacheck v. Sebastian 239 U.S. 394 (1915) where Justice McKenna held that an owner of a brickyard business was not entitled to compensation because the zoning laws in Los Angeles prohibited his use because it was a nuisance.

Safeguards against government action

Property-rights advocates contend that abuses of the exercise of these powers in the past require substantial safeguards to the public today, including 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 seized. 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, roads, and other local improvements. The extensive use of eminent domain for such purposes as economic development are currently under attack in many jurisdictions and there is a movement to pass state statutes to limit this use. Governor Richardson of New Mexico became the first governor to veto eminent domain reform legislation resulting from this recent surge in public interest.*

Bush Executive Order

On June 23, 2006, President George W. Bush issued an executive order stating in Section I that the Federal Government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." He limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."*

Europe

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.

England and Wales

In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is used. The operative law is a patchwork quilt of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, the Compulsory Purchase Act 1965, the Land Compensation Act 1973, part IX of the Town and Country Planning Act 1990, the Planning and Compensation Act 1991, and the Planning and Compulsory Purchase Act 2004.

Australia

In Australia, s51(xxxi) of the Constitution permits the federal government to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". This has been construed to not necessarily mean just compensation as a just term might not of necessity be monetary or proprietary recompense. However, it is for the court to determine what is just and it may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated (Andrews v Howell (1941) 65 CLR 255).

For the purposes of s51(xxxi), money is not property which may be compulsarily acquired; the Commonwealth must also derive some benefit from the property acquired and not merely seek to extinguish the previous owner's title (Mutual Pools and Staff Pty Ltd v Commissioner of Taxation (1992) 173 CLR 450). A statutory right to sue has been considered "property" under this section (Smith v ANL Ltd (2000) 176 ALR 449).

Other countries

Many countries recognize eminent domain to a much lesser extent than the English-speaking world or do not recognise it at all. Japan, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport, and the disproportionate amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave, one well-known recent case being that of Roppongi Hills.

There are other countries such as the People's Republic of China that practice eminent domain whenever this is necessary to make space for new communities and government structures. Singapore practices eminent domain under the Land Acquisitions Act which allows it to carry out its Selective En bloc Redevelopment Scheme for urban renewal. The Amendments to the Land Titles Act allowed property to be purchased for purposes of urban renewal against an owner sharing a collective title if the majority of the other owners wishes to sell and the minority did not. Thus, eminent domain often invokes concerns of majoritarianism.

Etymology

The Latin term dominium eminens ("supreme lordship") was used in the 17th century by Grotius to describe the concept explained above.

Further reading

  • Dana Berliner, Opening the Floodgates; Eminent Domain Abuse in a Post-Kelo World, Institute for Justice, June 2006. Available online *.

  • Redevelopment Wrecks; 20 Failed Projects Involving Eminent Domain Abuse, Institute for Justice, June 2006. Available online *.

  • Myths and Realities of Eminent Domain Abuse, Institute for Justice, June 2006. Available online *.

  • Steven Greenhut, Abuse Of Power: How The Government Misuses Eminent Domain, Seven Locks Press, June, 2004, trade paperback, 312 pages, ISBN 1931643377

  • Eminent Domain Abuse Survival Guide, Castle Coalition, Available online *.

  • Dana Berliner, Public Power, Private Gain, Institute for Justice, April 2003. Available online *.

  • A.J. Hazarabedian, California Eminent Domain Handbook, California Eminent Domain Law Group, June 2005. Available free online *.

External links

  • * This is the source of direction in the United States to state agencies and federal agencies using eminent domain in federal aid projects.

Real property law

Enteignung | Expropiación | Espropriazione | Onteigening | 徵收

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Eminent domain".

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