Eminent domain

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Eminent domain (US), compulsory purchase (England and Wales), compulsory acquisition (Australia) or expropriation (South Africa) in common law legal systems is the power of the state to appropriate private property for its own use without the owner's consent. The term eminent domain is used primarily in the United States, where the term was derived in the mid-19th Century from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. The term compulsory purchase, also originating in the mid-19th Century, is used primarily in England and Wales, and other jurisdictions that follow the principles of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign.

Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale. In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

Some coined the term expropriation to refer to "appropriation" under eminent domain law, and may especially be used with regard to cases where no compensation is made for the confiscated property. Examples include the 1960 Cuban expropriation of property held by U.S. citizens, following a breakdown in economic and diplomatic relations between the Eisenhower Administration and the Cuban government under Fidel Castro.

The term "condemnation" is used to describe the act of a government exercising its authority of eminent domain. It is not to be confused with the term of the same name that describes the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects. Condemnation via eminent domain indicates the government is taking the property; usually, the only thing that remains to be decided is the amount of just compensation. Condemnation of buildings on grounds of health and safety hazards or gross zoning violation usually does not deprive the owner of the property condemned but requires the owner to rectify the offending situation.

The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).

Contents

Origins

The power of eminent domain in English law derives from the form of real property. Many landowners assume that their property right is absolute under the law, but this is rarely the case. Instead, a county or other authority has created the property in fee simple, a concept that derives from feudal fiefs. The same authority may void (or condemn) the fee and seize the land, as when a landowner fails to pay property tax. According to William Blackstone,

"The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure. ... Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands."

English-speaking countries that never had the feudal system have perpetuated the system of fee-simple property, including the power of eminent domain, for legal continuity.

United States

In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. Most courts have interpreted "just compensation" to be the fair market value of the condemned property. Over the years the definition of "public use" has expanded to include economic development plans which use eminent domain seizures to enable commercial development for the purpose of generating more tax revenue for the local government. [1] Critics contend this perverts the intent of eminent domain law and tramples personal property rights.

In 1981, in Michigan, the Michigan Supreme Court, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954) [2], permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004 [3], as precedent. This expansion of the definition was argued before the United States Supreme Court in February 2005 [4], in Kelo v. New London [5]. In June 2005, the Supreme Court issued their decision in favor of New London, in a narrow 5-4 ruling—a decision that gives local governments wide latitude to decide when a seizure is for "public purposes", including economic development. The court hinted, however, that states could pass laws limiting the purposes for which eminent domain could be used. The controversial ruling sparked a backlash among citizens, and several states either have or are in the process of passing laws limiting eminent domain to either traditional uses (roads and public buildings) or to eliminate blight.

In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [6], a community group in Boston which attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.

Europe

In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions". Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation.

In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is more commonly used. The operative statutes are the Compulsory Purchase Act 1965 and the part IX of the Town and Country Planning Act 1990.

Australia

In Australia, s51(xxxi) of the Constitution permits the federal government to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". This has been construed to not necessarily mean just compensation as a just term might not of necessity be monetary or proprietary recompense. However, it is for the court to determine what is just and it may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated (Andrews v Howell (1941) 65 CLR 255).

For the purposes of s51(xxxi), money is not property which may be compulsarily acquired; the Commonwealth must also derive some benefit from the property acquired and not merely seek to extinguish the previous owner's title (Mutual Pools and Staff Pty Ltd v Commissioner of Taxation (1992) 173 CLR 450). A statutory right to sue has been considered "property" under this section (Smith v ANL Ltd (2000) 176 ALR 449)


Other countries

Many countries recognise eminent domain to a much lesser extent than the English-speaking world or do not recognise it at all. Japan, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport, and the disproportionate amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave (one well-known recent case being that of Roppongi Hills). On the other hand, countries such as China practice eminent domain as many times as necessary to make space for new communities and government structures.

Etymology

The Latin term dominium eminens ("supreme lordship") was used in the 17th century by Grotius to describe the concept explained above.

Further reading

  • Steven Greenhut, Abuse Of Power: How The Government Misuses Eminent Domain, Seven Locks Press, June, 2004, trade paperback, 312 pages, ISBN 1931643377
  • Dana Berliner, Public Power, Private Gain, Institute for Justice, April 2003. Available online [7].

External links

Retrieved from "http://en.freepedia.org/Eminent_domain.html"


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