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Can the government take privately owned land?

Eminent domain is the government’s way to take private land for public use under certain circumstances. The Takings Clause of the U.S. Constitution’s Fifth Amendment defines that power for the government. For state and local governments, the clause applies through the Fourteenth Amendment, which limits governments from taking private property from citizens “without just compensation.”

3 Categories for taking land

The different classifications are:

  • Complete taking: The entire property is purchased
  • Partial taking: Only part of the land is needed
  • Temporary taking: Property is needed for a specific period

What is considered public use?

The government must prove that it needs the property due to the benefits the project has for the public. Some examples include:

  • Transportation projects like roads, bridges and railroads
  • Government buildings such as a post office
  • Water supply infrastructure including aquifers
  • Expanding local, state and national parks
  • Preparing for war and producing war materials

How do eminent domain proceedings work?

Once the government plans a public project and decides it needs to buy privately owned land, it will begin the legal process of eminent domain, which is called condemnation. First, the government tries to negotiate a price, or possibly a land swap. If the landowner agrees on a price, they can avoid going to court.

If the landowner agrees to sell but believes the government’s offer is too low, they attend a court hearing to address the fair market value of the land in question.

If the landowner refuses to sell, the government will file a legal action and hold a public hearing. It must prove that it tried to negotiate a deal with the landowner and it needs the land for public use. This is where the landowner will have an opportunity to object to the government’s offer and present evidence before a judge.

Know your rights

Nearly 95% of the land in Texas is privately owned. The Texas Farm Bureau says that means if you own land, you may find yourself in a fierce legal battle with federal, state or local governments if they decide they need your property to complete a public road, bridge or other project.

If the government wants your land for a public project, you have the right to object. A real estate law attorney with experience handling eminent domain issues can work to make sure that the project meets the standard for public use. Even if the landowner cannot prevent the government from taking your land, an attorney can help work to ensure that you receive a fair price for the property.

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William T. Peckham
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Austin, TX 78701
Phone: 512-487-7604
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