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Real Estate Law
Commercial Real Estate | Residential Real Estate | Condemnation

The 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.

Government's 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 home.

Just Compensation
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 taken.

Determining Value
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:

  • Up zoning
  • Highest and best use
  • Relocation expenses
  • loss of goodwill
  • etc.

Retaining a Lawyer
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 landowner.

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