Can the Government Legally Take Your Property?
Yes. In Arizona, the government has the power to take your property through eminent domain, even if you aren’t interested in selling. However, under the Fifth Amendment, land taken through eminent domain must be for public use, such as projects like widening roads or building new freeways.
Of course, there are certain requirements that must be met before the government can execute eminent domain. Let’s get into those details next.
What Is Eminent Domain in Arizona?
Eminent domain refers to an exercise of power by a government entity to take private property for public use. From highway commissions and utility companies to airport authorities and community development organizations, these entities have the right to propose to use their eminent domain authority to take private land.
The U.S. Constitution’s “Takings Clause” of the Fifth Amendment defines the power of eminent domain but does not give the government permission to obtain any property it wants. Instead, it limits the government’s power by requiring that land only be taken for “public use” and in exchange for “just compensation.”
Under eminent domain in Arizona, there are several categories of property takings, including:
- A complete taking in which the property as a whole is purchased.
- A partial taking in which only a specified portion of the property is purchased.
- A temporary taking in which the property is only required for a period of time.
The “taking” of property generally involves more than just the government obtaining the property. It may also include extensive development plans or zoning changes that could potentially reduce the property’s value.
How the Eminent Domain Process Works
The process of eminent process may occur if the government plans a public works project that requires the use of nearby private property. Also known as condemnation, the legal process of eminent domain typically begins with a negotiation. The government entity will attempt to negotiate a deal with the property owner for the land.
In the event that the property owner is willing to sell the land to the government, a sale can occur in which the property owner receives fair compensation. This method allows both parties to avoid court. However, it’s best to speak with an Arizona eminent domain attorney before signing over the property to ensure that the compensation is fair.
If the property owner does not agree on the sale price, both parties will go to court to determine the property’s fair market value. This value is calculated via an appraisal of the property. If the property owner refuses to sell the land, the government has the right to file a court action and schedule a hearing.
During the hearing, the government will need to prove that the property is being taken for public use and that negotiations have occurred. The property owner can object and offer his or her own evidence. It is important for property owners to have an experienced eminent domain attorney at this time to increase their odds of a successful outcome.
See the graphic below for a visual guide to the eminent domain process:
Inverse Condemnation for Property Owners
Eminent domain can cause a range of problems for private property owners, including potential damage to their investment. Inverse condemnation is an action related to eminent domain and it is important to know if you have recently been offered a payment from the government for your land.
Inverse condemnation occurs when modifications on private property taken by the government have hurt or caused damage to the value of nearby properties that are still owned by the private property owner. For example, if the property was taken to build an oil refinery, the harmful fumes from the refinery could lower nearby property values.
If this type of situation has occurred, affected property owners have the right to file a lawsuit against the government entity that took the property. If the property owner wins the suit, the government must provide compensation for any damage done to the nearby properties.
What to Do If the Government Takes Your Land
If a government entity plans to take your property for public use, there is little that can be done to stop it as long as the government has a legitimate reason for its action. Often, the eminent domain process is put into effect for projects relating to public utilities, roads, or government buildings.
When a government entity wants your private property, they will send an appraiser to assess the property’s location, condition, size, accessibility, and current use. This information will then be used to determine the property’s value. Other factors that may be considered when calculating value include:
- Condition of the property
- Type of property
- Surrounding properties
- Timing of the sale
- Local building codes
- Property-related restrictions
Although it may not be possible to stop the process of eminent domain, property owners can seek additional compensation. It is common for government entities to offer property owners less than what the property is actually worth. Even if the government offers what they claim to be fair market value, you can still insist on getting more.
Seeking additional compensation for private property during eminent domain can be tricky. It’s important to have a reputable Arizona eminent domain attorney on your side to protect your interests and guide you through the process. Your attorney will assist you in acquiring an accurate assessment that could result in additional compensation.
Can Eminent Domain Be Fought in Court?
Fighting eminent domain in court can be a tough battle for private property owners. While not common, there are scenarios in which a property owner could win a case against a government entity. This usually occurs when a property owner can prove that the taking of the property is not for the betterment of the public.
Most jurisdictions will carefully review the case to ensure that the reasoning behind the government’s action is valid. In rare cases, it will be found that a government entity’s reasoning is flawed. For example, if a government entity attempts to take property for commercial gains.
More commonly, eminent domain cases are taken to court if the value offered for the land is too low, and the property owner will seek to get paid a higher price.
JacksonWhite Can Help You Navigate Eminent Domain
If you are facing an eminent domain situation, consult with a knowledgeable Arizona eminent domain attorney here at JacksonWhite. Call us today at (480)467-4334 to schedule a consultation!