Homeowners understandably believe that owning their home gives them the right to the ownership of their property, i.e. they are the ones who determine when and to whom they would sell their home if they wished to do so. What may not be understood is that there is an exception to that general rule, which allows the state, in the form of a municipal, state or federal government department to unilaterally take a part or all of their property under certain circumstances. This is called the principle of eminent domain. Not many homeowners would ever likely experience their property being taken, but if it does happen, it is important to understand what eminent domain entails and what your rights are.
What is eminent domain?
As part of Massachusetts’ Constitution, government entities have the power to take possession of private property for public use. This can only take place through a formal process, which will be explained in more detail below. Any landowner or homeowner whose property is to be taken must be fairly compensated for their loss.
It is very unlikely that private property owners lose their land to a government department without adequate compensation, or for an incorrect reason. However, there have been a few cases where property has been taken without following the correct formal process or because the taking authority did not legally have the right to do so. Because it is almost impossible to reverse a property removal after the process has been completed, it is important to understand your rights and contact an attorney before any legal papers are signed to ensure that compensation is fair and adequate and the process and purpose of the acquisition is legal.
What property is typically acquired under eminent domain?
Most property that is acquired under eminent domain takeovers are parcels of land that are required for new roads, or other public infrastructure. However, land may still be acquired for any purpose that the government entity deems necessary to satisfy an important public need. The land that is to be taken might only be a part of a homeowner’s property or the whole parcel, depending on what the intended use is.
If a homeowner believes that the compensation being offered to them for the property being taken is unfair or that the use of the taken property is not for the public good, then they have the right to challenge the taking of their property in court.
The eminent domain process
In Massachusetts, eminent domain is governed by state law under the Constitution. Massachusetts General Law (MGL) c.79 explains the process under which eminent domain works. Once a government department, for example the Massachusetts Highway Department, (in the case of acquisition for new roading) has determined what land they need to acquire for the relevant public works they intend to carry out, a formal process of acquisition is initiated. The department involved in the takeover will carry out a land title search to determine who owns the land they wish to acquire through eminent domain and will typically engage a real estate appraiser and possibly other professionals, such as engineers, to decide on an amount which is regarded as fair compensation to pay the land owners.
The department will then petition the court to take ownership of the property and issue a notice of intent to acquire the property to the owners of that property. When homeowners receive this notice, they should contact a real estate attorney to discuss the takeover of their property. They must be sure that the amount of compensation is reasonable and that the purpose for the acquisition is legal as defined by Massachusetts law.
Can a homeowner challenge a takeover of their property under eminent domain?
It would be rare for jurisdictions to make mistakes when attempting to remove private property so in most cases, there is usually little that property owners can do if they receive a notice of intent to take their land under eminent domain. However, it would not be wise to do nothing at all in response to a notice to take their property. The amount of compensation offered should be assessed carefully and an attorney should look through the reasons given to take the property to ensure that it is genuinely for the purpose eminent domain takeovers are legally entitled to do, i.e. acqure land for the public good.
If either of these assessments does not stack up, then there may be grounds for a challenge to the takeover. The attorney will advise you what your legal options are in the event that grounds for a challenge exist. Provision for a homeowner to challenge an intended acquisition of their land is available by the Fifth Amendment to the U.S. Constitution. Federal law provides protection for any homeowner affected by eminent domain decisions.
For a challenge to a takeover to take place, the homeowner should file a lawsuit in court against the government agency which has sent them a notice of intent to acquire their property outlining the reasons why they are challenging the decision to acquire their land, i.e. unfair compensation, illegal reasons for acquiring the land or undue process involving the takeover.
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