Fifth Amendment gives government the power of eminent domain,
that is, the legal right to take private property. This power
is conditioned on the property being taken for a legitimate
public purpose and the payment of just compensation to the
owner. Typical public uses would be a public park, a roadway,
or a school. Just compensation is usually, but not always,
fair market value.
Right to Take Private Property
In most cases, as long as the government takes the private
property for a legitimate public use, the affected landowners
cannot retain ownership of the property, even if it is a family
Once property owners are resigned to the fact that their property
will be taken for a public purpose, problems usually arise
over price. Like all buyers and sellers, both parties in condemnation
want the best deal possible, with the government's determination
of what constitutes a fair value usually coming in lower than
the property owner's. Indeed, the California state government
faces a tension between its duty not to waste public funds
and its duty to pay just compensation for property that is
To determine the potential value of the property, an appraisal
is usually needed; indeed, statutes require the government
to appraise the property and get landowners's input in conducting
the appraisal. Several factors could help to increase the
property's value, and, thus, the amount of compensation received.
These factors include:
and best use
Having an attorney negotiate with the government on your behalf
often raises the government's offer of just compensation.
If litigation is necessary to determine a fair value for the
property, attorney's fees are typically recoverable by a prevailing
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