What is Eminent Domain?

Eminent domain is the right of a governmental body — normally a country, state, city, town, or county — to legally appropriate a private individual’s property for its own use. That the property owner might not want to part with his land or residence is of no consequence, and he has very few avenues of legal recourse. If the government body in question wishes to take the property, they are fully within their rights to do so.

In the United States, it was generally understood that a government could not seize private property unless it was for a necessary and justifiable public use. The process, also known as condemnation, was usually exercised in specific cases, often having to do with some sort of public utility construction. For instance, land has been appropriated under eminent domain laws if it was in the path of a proposed highway, or if certain sections of a property were needed in order to install sewer, power, or telephone lines. Eminent domain has also been exercised for the building of schools and parks, or to take over urban areas that had become so blighted as to be a danger to the local population.

It has traditionally been believed that the authors of the United States Constitution believed private property rights were sacred, not be violated unless there was a pressing need that pertained to the public welfare. However, the authors also seemed to realize that abuses were always possible. Thus, the Fifth Amendment to the Constitution was created. In brief, it states that landowners must be fairly compensated for property seized under eminent domain laws, with the compensation based on a fair market value. Fair market value is usually defined as the highest price a private seller would offer for the property.

However, eminent domain laws experienced a transformation when, in 2005, the United States Supreme Court made its ruling in the case of Kelo versus the City of New London. In this case, the city of New London, Connecticut, wished to condemn a sizable portion of land that was in an economically depressed area. The land was to be transferred to a private developer, who intended to construct homes, condominiums, and commercial structures. Suzette Kelo, a resident of the area who did not wish to lose her home, filed suit against New London.

The Supreme Court, in a five to four decision, decided in favor of the city. This was a landmark case, in that it implied that “public use” could now be defined as anything that brought additional tax revenue to a governmental body or municipality. Since that time, due primarily to public outcry, over 40 states have altered their eminent domain laws to more strongly define the meaning of “public use.” Some constitutions now explicitly state that eminent domain cannot involve the transfer of seized property to a private individual or corporation for reasons of profit. Other states have been less stringent, and as of 2009, the exact definition of eminent domain remains uncertain.