Procedure

When the government wishes to "take"-that really is the legal term-real property from a private owner, it normally does so through the process of condemnation. Contrary to what some might believe, condemnation doesn't apply to dilapidated or dangerous properties. Condemnation is the legal term applied to the process by which the government takes real property.

Technically, the condemnation process begins when the eminent domain procedure is brought to court or prepared for court action. But sometimes, the government takes property without having to go through condemnation.

When the government or an entity wants to take property from its private owner, it normally follows these steps (or something similar):

  1. Plans. The power of eminent domain cannot be exercised on a whim. It requires advance planning and documentation, as well as budgeting. There is no sense getting land for a park, if there won't be any funds for its creation or upkeep.
  2. Government approval. The plan to take property must be approved by the appropriate office or groups. For example, municipal attempts to take property often must be approved by the city council or at least a development committee. In some cases, a government executive office or department may have advance approval to initiate eminent domain proceedings.
  3. Direct negotiations. It's more efficient and usually cost-effective to take property without involving the courts. Whenever possible, the government or entity may simply try to negotiate an outright purchase with current owner. Of course, the this is never like a simple purchase transaction, because there is always the implied threat behind the government's offer.
  4. Court proceedings. If direct negotiation doesn't work, the government can then begin condemnation proceedings through the courts. As previously discussed, the court provides the property owner with due process of the law in determining the validity of the eminent domain attempt and in arriving at a fair compensation. Court decisions can be appealed, of course; but reversals are rare.
  5. Condemnation judgment. The court proceedings conclude with a judgment in favor of the government, transferring ownership rights to the property from the current owner to the government or other entity.

The condemnation procedure can be to obtain either fee simple title or an easement, depending on what the government or condemnor needs. If an easement is all that is required, then that is often all that is given by the court. The property owner retains ownership of the property; the government, utility or other entity simply receives an easement over that person's property.

This is an important point, because the easement may eventually be terminated; and the property owner would then have full control of his or her property once again. For example, the government may acquire an easement to build a road through a property owner's land. However, if the need for that road disappears and the road is essentially abandoned, then the landowner may be able to terminate the easement. See the "All About Easements" article for a review of the events or conditions that may terminate an easement.

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