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EMINENT DOMAIN OVERVIEW

Southeast Appraisal
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When a government or condemning authority takes land for a public use, it is exercising the power of eminent domain (sometimes called Condemnation, Appropriation, or Expropriation depending upon the jurisdiction). Condemnation transfers title or some lesser interest from the property owner to the condemning authority, what might otherwise be a trespass, conversion, or wrongful eviction, under a legal framework. The framework both empowers the condemning authority to take property, and constrains the condemning authority from certain abuses, with the intent of balancing public necessity and property rights. From a historical perspective, eminent domain refers to the inherent right of the sovereign (generally a Monarch) to ultimately own all land. Under feudal systems, all property rights, particularly to land flowed from the sovereign, then through the aristocracy or governmental ministers endowed with authority by the sovereign, and finally to the people. This tradition was passed through England to the United States. The founders of the United States and framers of the constitution were steeped in the European eminent domain tradition, but also in the philosophical innovations of John Locke, who argued that property rights do not derive from a sovereign, but are an inherent right of all people bestowed by the two pillars of God and reason. The Founders distilled these two ideas of property into eminent domain as it exists in the U.S. Constitution. The Fifth Amendment preserved the government’s power to take property from English common law, but imposes the restrictions that such property must be taken for a “public use” and that taking property imposes a duty on the government to pay “just compensation”. Viewed currently, eminent domain powers are held not just by governments, but can be delegated to private or semi- private entities as well when they engage in public purposes and require land for public uses. These powers may include railroads, pipeline companies, service authorities and regulated monopolies like utilities. Like the government, these entities are required to pay just compensation to property owners when they “take” property through condemnation. Just compensation varies from state to state and between state and federal courts, but generally is an attempt to provide “fair market value” of the property taken. In most jurisdictions, the goal is to simulate a sale between willing participants, as if the project was not occurring, and not to provide a windfall to either the property owner or the taking entity. The fair market value of property taken, and in some jurisdictions damaged, is generally determined by third party appraisers, who represent each side and present appraisal reports to the finder of fact (who, depending on the jurisdiction, can be a judge, private or governmental commissioners, or a jury). Because the just compensation owed is usually determined by the effectiveness of appraiser methods and testimony, hiring an experienced and thorough appraiser is critical for success for all parties involved. What Alex Ruden Brings to Your Eminent Domain Case Alex Ruden, ASA, has served condemning authorities and property owners over a 45-year career in the states of New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina and Georgia. Alex is generally familiar with and experienced in the procedures, from both the condemning authority’s and the property owner’s perspective within each state. These varied issues include: Partial Takings vs. Whole Takings What takings or damages are compensable under the principles of “just compensation” Defining real property vs. tangible personal property (are items “fixtures”?) If they are “fixtures” how are they valued? It is the appraiser’s task to appropriately understand the variances noted above and work within the regulations and “case law” within each state.
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EMINENT DOMAIN OVERVIEW

Southeast Appraisal
When a government or condemning authority takes land for a public use, it is exercising the power of eminent domain (sometimes called Condemnation, Appropriation, or Expropriation depending upon the jurisdiction). Condemnation transfers title or some lesser interest from the property owner to the condemning authority, what might otherwise be a trespass, conversion, or wrongful eviction, under a legal framework. The framework both empowers the condemning authority to take property, and constrains the condemning authority from certain abuses, with the intent of balancing public necessity and property rights. From a historical perspective, eminent domain refers to the inherent right of the sovereign (generally a Monarch) to ultimately own all land. Under feudal systems, all property rights, particularly to land flowed from the sovereign, then through the aristocracy or governmental ministers endowed with authority by the sovereign, and finally to the people. This tradition was passed through England to the United States. The founders of the United States and framers of the constitution were steeped in the European eminent domain tradition, but also in the philosophical innovations of John Locke, who argued that property rights do not derive from a sovereign, but are an inherent right of all people bestowed by the two pillars of God and reason. The Founders distilled these two ideas of property into eminent domain as it exists in the U.S. Constitution. The Fifth Amendment preserved the government’s power to take property from English common law, but imposes the restrictions that such property must be taken for a “public use” and that taking property imposes a duty on the government to pay “just compensation”. Viewed currently, eminent domain powers are held not just by governments, but can be delegated to private or semi-private entities as well when they engage in public purposes and require land for public uses. These powers may include railroads, pipeline companies, service authorities and regulated monopolies like utilities. Like the government, these entities are required to pay just compensation to property owners when they “take” property through condemnation. Just compensation varies from state to state and between state and federal courts, but generally is an attempt to provide “fair market value” of the property taken. In most jurisdictions, the goal is to simulate a sale between willing participants, as if the project was not occurring, and not to provide a windfall to either the property owner or the taking entity. The fair market value of property taken, and in some jurisdictions damaged, is generally determined by third party appraisers, who represent each side and present appraisal reports to the finder of fact (who, depending on the jurisdiction, can be a judge, private or governmental commissioners, or a jury). Because the just compensation owed is usually determined by the effectiveness of appraiser methods and testimony, hiring an experienced and thorough appraiser is critical for success for all parties involved. What Alex Ruden Brings to Your Eminent Domain Case Alex Ruden, ASA, has served condemning authorities and property owners over a 45-year career in the states of New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina and Georgia. Alex is generally familiar with and experienced in the procedures, from both the condemning authority’s and the property owner’s perspective within each state.