The Right to Take in the Eminent Domain Process

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The process in which a governmental or quasi-governmental entity can take private property for public use is called eminent domain. Commonly known as condemnation, the eminent domain process is complex and can often be interpreted differently from state to state. The important thing to know is that the eminent domain is not totally unlimited – there are areas in which the right to take can be challenged. The challenge arises when the basic eminent domain requirements for the taking are not satisfied.

In order to take property from an individual property owner, a governmental entity must satisfy two requirements. One, the property must be used for public use, as defined in the federal constitution; and two, the property owner must be paid just compensation. There is also the issue of necessity, which is a sub class of public use. Necessity is the test that determines the amount of property needed to adequately undertake the public purpose. Notably: failure for the taking to fulfill the definition of public use could be a basis for stopping the taking of the property

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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