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Eminent Domain and Condemnation: Taking a Bone from a Dog

Private PropertyImage by mollybob via Flickr

My property professor described ownership as “how a dog feels about his bone.”* Your ownership can be taken away by the government to discharge its functions, including: appropriating resources for military service, turning swaths of private property into streets, or even giving to another business (if it qualifies as a public use). This is the power of ‘eminent domain’ and it occurs at municipal, county, state, and federal levels.

There are many debates about that power and how it is used.

The relativity of ownership is a result of governmental limitation on its own sovereignty. The Fifth Amendment to the U.S. Constitution reads, "...nor shall private property be taken for public use, without just compensation." The Fifth Amendment, therefore, limits the power to taking private property for public use. The exercise of this power is called condemnation. This blog only addresses condemnation for public use. Condemnation for public safety includes the act of declaring a building uninhabitable, a corollary use of eminent domain. 

What does this mean to the average Iowa citizen or business owner? There you are, minding your business [of making widgets/developing software/cooking pork tenderloins]. You receive notice that the city is going to acquire your property to build [a park/a road/an electric substation/an area for a large business]. You are outraged. What can you do? 

The taking of private property must be for “public purposes which are reasonable and necessary as an incident to the powers and duties conferred upon” the city or county in most cases. If the government's justification is shaky, you may challenge the condemnation. An experienced property attorney will make sure that the condemning entity has legislative authority, that the proposed conversion of your property to public use is for a valid purpose, that no more property is taken than necessary, and that the effect of the taking does not diminish the value of your remaining property. 

Then, you may seek just compensation, including a fair relocation benefit. In Iowa, the condemning authority must offer to buy the property for fair market value and must make a good faith effort to negotiate. While the purchase and closure or relocation of your business is a tremendous hassle, it can also be a financial boon to your business. In many cases, established businesses find they are given an unexpected opportunity to receive a publicly-financed relocation, a better location, a newer facility, and/or a cashout of a good lease rate. In the best cases, businesses expand, sometimes in conjunction with economic development incentives if they qualify. Some find that this alleviates questions about how to cash out and retire.

If you cannot agree with the government on a buyout amount, you may hire an attorney and an appraiser and duke it out in front of the county compensation commission. If you have been low-balled by the government, a good result from the commission can even get your fees and costs paid (if the award given is at least 110% of the final offer made by the condemning authority).     

Even if you find that you are just a dog and your property is just another bone . . . get your bite in. 

-          Christine Branstad           

* He credited former law student Roxanne Conlin with that colloquial definition. 

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