There are many common and not-so-common situations where a public entity may not have the power of eminent domain. These include: Property sought is outside the public entity’s territorial limits. Staff might propose to acquire property outside the public entity’s territorial limits. Extra-territorial takings are permitted in only certain circumstances. Property sought is in excess…
Practice Tip to Avoid the Potential for Precondemnation Damages
This is a practice tip to avoid the potential for precondemnation damages. In all project documents, refer to future land acquisitions in noncommittal, tentative, conditional language. Examples: “The proposed acquisition” “The acquisition under staff consideration” “The recommended acquisition” “No decision has been made to acquire the property” “Only the governing board can make the decision…
Pitfalls Arising From Tardy Involvement of Public Entity Counsel in an Eminent Domain Action
Public entity counsel should become involved early in the planning stage of the project. If this does not occur, the ability of public entity counsel to acquire a needed parcel at fair market value could be compromised by the time counsel gets the file. For example: Staff may have left a paper trail demonstrating that…
A Brief History of Eminent Domain
Eminent domain is the power of government to take private property for a public purpose without the owner’s consent. The power of eminent domain is invoked only after every effort is made to acquire property through negotiation with the property owner and only as a last resort. The power of eminent domain is inherent in…