Property II
Eminent Domain:
1. Definition: Intentional action ignited by the government for the taking of property for public use, in payment of just compensation. They take your property and either take it or give it to private persons.
2. Political Philosophy: John Locke v. Thomas Hobbes
a. John Locke: viewed the fundamental objective of the state as being for the purpose of protecting life, liberty, and property. Pro-Property rights.
b. Thomas Hobbes: wanted to protect life, even at the expense of liberty and property rights. He says you should appoint a leader, give the leader a right to keep the piece, in doing so you give up a bit of your rights.
3. Eminent Domain: Can the really do that?
a. Relevant part of the 5th Amendment: No person shall be deprived of property, without due process of law’; ‘nor shall private property be taken for public use, without just compensation’
b. Recipe for Eminent Domain: For an Eminent Domain to occur, the following must be present:
· the activity in question has to be in the action of the government
· A private persons property must be taken
· The government must give notice of what it intends to do first and the person whose property the government wishes to take must be given due process i.e. and opportunity to be heard
· The government must pay just compensation for the private property it takes
· The taking must be for public use
c. What kind of property can be taken? Real property, fixtures, leases, options, stocks, bonds, and even the rifle that killed President Kennedy
· Taking-condemnation of property through eminent domain
d. What is the “public use?”
· Examples of Public Use: Highways, bridges, railroads, ferries, canals, telegraphs, schools, parks, off-street parking, trade center development, municipal civic centers, airport expansion, open space, historical restoration, urban renewal, economical development (this is controversial), beautification, and others.
· More recently, the concept of public use has been expanded from being “direct use and occupancy of the property by the public” to include taking of the property for projects that “benefit the public.”
· Important quote from Mitkiff quoted in Kelo: ….this “court long ago rejected any literal requirement that condemned property be put into use for the general public.”
1. Berman v. Parker(1954): The government created a Comprehensive Redevelopment wanted to take a store to redevelop the property it was on to make apartment homes. The surrounding area was blighted and in bad condition but the store itself was not. The question becomes, can the government take non-blighted property to create non-blighted property as public use? The court says if congress says it is for public use then it is, the congress generally steps in when it’s a public health, safety, and welfare issue. Public use is what Congress says it is. If legislation says were going to have a comprehensive plan for dealing with this you’re out of luck, no piecemeal approach for Mr. Department store. “It is within the legislature’s power to determine that the community should be beautiful as well as healthy, spacious, as well as clean, well balanced as well as careful patrolled”
2. Hawaii Housing Authority v. Midkiff(1984) in this case there was an oligopoly ownership in land ownership so the court forced the owners to sell property to the people who were renting the property. The Supreme Court says that it is a public use b/c when it is enacted for health, safety, and welfare use then it constitutes public use. Justice O’Connor says that anything that the gov can regulate under police power is able to be possessed by eminent domain. What exactly does the court say is the public use? The court says that is eliminates the impediments of existing land conditions by eliminating oligopoly
3. Kelo v. City of New London (2005) (The Federal Economic Development Case) this was the case in Conn. where the gov. wanted to take property to rebuild on the property to help create jobs, thus creating economic development. The objection is over several non-blighted houses. The 5th Amendment will allow a government taking to transfer from one private owner to another if future use by the public is the purpose of the taking. The court abandoned long ago the literal requirement that condemned property must be put into use for the general public.”It’s only the properties purpose not the mechanics” Dissent: O’Connor says “under the banner of economic development, all private property is now vulnerable to be taken and transferred to another private owner, so long as it might be upgraded in the process” O’Connor liked the Midkiff case but dislikes the Kilo case b/c she thinks Kilo would hinder people from buying private property to build on with fear of the property being taken by the govt. and should not be a reason for “public use.”
· State Law “Public Use” Rule under state law and constitution: Varies from sta
you are much closer to the road, how do we equate what has been taking? The gov has to pay for the diminished value of the remainder. 2nd example: U live in an area which is expanding and there is a 2 lane road in that area, u have a house on the road, but it is zoned commercial, the gov comes in and makes it a 4 lane, now they have increased the value of the commercial property, can the gov take into account that they have now increased the value of your property? Courts are split but many say yes they should take it into consideration. They can factor in the increase in value v. the decrease and value and see how much they need to pay u or may not even have to pay you.
· Personal reasons: prof’s brother is buried on the property, would she get credit while calculating just compensation? No, sentimental value does not matter and is not factored in b/c it would be 2 difficult to do
· Relocation Benefits: benefits- most states give relocation benefits, and you would get packing, loading, moving, disassembling, and reassembling, however moving expenses does not have pay if it is not stipulated in the states statute
· Just Compensation Appraisals:
i. Market approach (comparable sales approach)- usually this is used for vacant properties
ii. Cost approach (for improved properties)-usually used for improved properties, you would estimate the value of the replacement of the improvement of the land, and then apply the market approach for the value of the land itself
iii. Income approach (for income producing property)- based on how much value it brings in and apply a factor to determine the actual value
· Just Compensation Shortfalls: As suggested by Prof. Fennell in her article, “Taking Eminent Domain Apart,” three shortfalls of just compensation are:
i. Loss of Personal value;
ii. Loss of the Chance of surplus in a voluntary sale;
iii. and Loss of autonomy (being forced to sell against your will).-leaves u w/ a bad taste in your mouth
