There's been an uptick in eminent domain in the headlines lately. From local officials planning to seizea New Jersey church for a playground to Pope Leo XIV's Illinois childhood home being eyed as a historical site, the government's ability to acquire land for public use has become top of mind.
But can the government really just buy your property out from under you without your consent? Under certain circumstances, yes.
However, homeowners and landowners have some recourse, according to several legal minds who handle eminent domain cases.
What is eminent domain?
Eminent domain is the legal authority that allows the government to take private property for public purposes, even without the property owner's consent, as long as fair compensation is given.
When the government takes property through eminent domain, it has a constitutional right to do so.
The Fifth Amendment states no person shall be "deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. The "Takings Clause"—found at the end of the Fifth Amendment—stands out as the only provision in the Bill of Rights written exclusively by James Madison, without prior suggestion from other constitutional delegates or state ratifying conventions.
Its inclusion was likely a response to the Continental Army’s wartime practice of confiscating supplies without compensation during the Revolutionary War.
Although eminent domain allows governments to take private property for public use with fair compensation, 12 states have moved to limit this power, specifically in cases involving economic development. These states are Alabama, Georgia, Idaho, Indiana, Kentucky, Michigan, Ohio, South Dakota, Texas, Utah, West Virginia, and Wisconsin.
Pope Leo XIV's childhood home was swiped off the market just hours after he was elected to be the next pope, had been listed for $199,000 prior to the conclave. Realtor.com
Recent eminent domain examples
The pope’s childhood home
Pope Leo XIV’s childhood home went up for auction shortly after the pontiff was named, but the Village of Dolton, IL, intends to acquire the residence through eminent domain laws first, according to Fox Chicago.
The three-bedroom, three-bathroom house is listed for sale on a real estate auction website, and its reserve price is $250,000. Bids are currently active and are open until June 18.
In a letter written to the CEO and founder of Paramount Realty USA, obtained by Fox News Digital, the Village of Dolton's attorney Burt Odelson said the village has the right to purchase the 1,050-square-foot home, even if another buyer is willing to pay a higher price.
Odelson also said in this letter that village officials are working with the Chicago Archdiocese to turn the home into a historic site that can be visited by the public.
“The seller wants to sell and the village wants to buy. The question is: How do we determine what is fair market value for something so unique, so rare?" Steve Budzik, the home’s listing broker, told Catholic News Agency. "There are no comps, there is nothing else like this.”
A New Jersey church eyed for a neighborhood playground
The town of Toms River, NJ, is planning to use eminent domain to seize Christ Episcopal Church and the 10 acres it sits on to build a park, soccer field, and pickleball courts.
Before the ordinance was enacted, the church congregation had requested approval to develop a 17-bed homeless shelter on the property, aiming to address the town’s growing homelessness crisis.
Some town members believe the city is seizing the land in retaliation for that, and the church's lawyer has escalated the matter as a religious freedom matter.
“It is blatantly illegal, improper, and violates the United States Constitution, as well as numerous New Jersey laws and case law,” said attorney Harvey York to NJ.com. “No town has ever done this, let alone done it to a church, and it‘s clearly retribution.”
Iowa pipelines
Meanwhile, in Iowa, a different story is unfolding: Officials are trying to restrict the use of eminent domain.
Lawmakers in Iowa have approved House File 639, which would restrict the use of eminent domain—the process by which the government seizes land for infrastructure projects for things like carbon dioxide pipelines.
Iowa Gov. Kim Reynolds has until June 14 to decide whether to sign it into law or veto it.
Eminent domain lawyers weigh in on the big questions
Eminent domain attorneys Claire Carroll, shareholder at Munsch Hardt in Dallas, and Eric Teusink, managing partner at Williams Teusink in Decatur, GA, answer the top questions about eminent domain.
Can a homeowner refuse eminent domain?
Carroll: "Eminent domain is the government’s power. So long as the government meets the constitutional requirements discussed below, the government has the right to exercise that power and the homeowner cannot simply refuse. The homeowner may challenge whether the taking is constitutionally proper or challenge the amount the government wishes to pay the owner as 'just compensation,' but the homeowner cannot simply refuse to comply."
What are the limits of eminent domain?
Teusink: "Eminent domain must be used for a public use. Most commonly, this is for roads, railways, utilities, parks, et cetera. On occasion, governments have attempted to stretch the meaning of 'public use' to entail takings for economic development projects that will ultimately accrue to the benefit of private companies. This practice is controversial but has been upheld by the United States Supreme Court."
What property is exempt from eminent domain?
Carroll: "This varies by state. Some states prohibit certain types of property, such as cemeteries, from eminent domain."
Has anyone ever won an eminent domain case?
Teusink: "If you mean preventing the government from taking your land, then, while a case may exist, a determination that a taking was not for public use is extremely rare, and I am not aware of any specific examples. The government is required to pay you fair market value for your property if they take it, and property owners are often successful in fighting to get substantially more than the government originally offered."
How long does eminent domain last?
Teusink: "Typically forever, as your land is being taken and you are being paid for it. But there are occasions where government might pay you for a temporary easement. Typically, this is for access to a government construction project. A temporary easement will expire, and you will regain your rights in your land."
Can you protect yourself from eminent domain?
Carroll: "Even though an owner can’t fully insulate their property from being taken by the government through its exercise of eminent domain, you can protect your rights and negotiate a fair compensation. If the government is seeking to acquire your property by eminent domain, consult an attorney licensed to practice law in your state that specializes in eminent domain to understand your rights under both federal and state law."
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