Can a government entity come in and take over your property and others next to it to build a mall?
Under the concept of eminent domain and following a 2005 Supreme Court ruling, the answer is yes — even for a shopping center or any structure that benefits the community, including hotels, condos, and health clubs.
If you own property in or around Philadelphia and a government agency serves an eminent domain notice to you, you have rights under the Constitution and Pennsylvania law. Contact our team at Richard L. Vanderslice, P.C. Our firm is experienced and knowledgeable in real estate law and eminent domain and we will fight alongside you for the optimal resolution.
Eminent domain derives from what is called the Takings Clause of the U.S. Constitution. Specifically, the Fifth Amendment to the U.S. Constitution guarantees that no person can “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 Fourteenth Amendment extended the Takings Clause to the states.
The “due process of law” makes eminent domain a legal process that begins with a notice from a government agency that it intends to acquire your property for “public use,” and then generally ends with that agency paying “just compensation” for the property. The process in between can vary somewhat by state.
In Pennsylvania, the process begins with a government agency with eminent domain power filing a declaration of taking with the Common Pleas Court in the county where the property is located. The declaration must also be served upon the property owner by registered mail, delivered by the local sheriff, or posted and published in a newspaper announcement.
The term "condemnation" is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government. The agency initiating the taking is known as the condemnor, and the property owner the condemnee.
Upon filing and delivering the declaration, the agency immediately assumes title to the property, but not possession. This allows the agency to begin the process of seeking zoning and land development permits. The law further allows the condemnor to assume possession of the property 30 days after submitting the declaration so long as it pays what is called “estimated just compensation” (EJC) to the condemnee.
During those 30 days, however, the condemnee can file preliminary objections that stop the possession process until the objections are heard in court and ruled upon. The property owner can appeal any adverse decision, but an appeal does not stop the taking, or what is called the “tender of possession.”
If the condemnor has not paid EJC on the 60th day after posting the declaration, the condemnee can tender possession to the condemnor, forcing them to pay the EJC (provided no preliminary objections are pending). Conversely, the condemnor has up to two years to withdraw the declaration absent a tender of possession by the property owner.
At any time, the condemnor and condemnee can agree upon market value and the EJC, and the eminent domain process will end upon payment.
If not — and there are no pending objections — the court will appoint a board of viewers comprised of three individuals, one of whom is an attorney and serves as chairman. The others typically will be real estate professionals, appraisers, attorneys, engineers, and the like. At least two of the members, including the chair, must visit and evaluate the property and review the plans for it.
The board will hold a hearing and call witnesses. Each side will make a presentation, along with professional appraisals, with the condemnor going first. The condemnee is also allowed to personally testify. The hearing may adjourn from time to time, but most hearings are wrapped up in one day.
The board has 30 days after the hearing to issue a report, after which both sides have 30 days to file an appeal.
Significantly, at any time during the proceedings, the two sides — condemnor and condemnee — can negotiate an agreed-upon valuation and end the hearing.
Government entities such as the public works commissions, transportation departments, school districts, municipal and county governments, and similar agencies usually possess condemnation (or eminent domain) powers. The federal government also has the power to condemn and take property in the 50 states. Eminent domain can also be transferred to third parties designated to carry out the public good.
Prior to the 2005 Supreme Court decision, eminent domain was typically limited to:
Transportation projects, like roads, railroads, and bridges
Government buildings, such as post offices
Structures related to the water supply, like aquifers
Expansion of public and national parks
Preparation for war efforts and production of war materials
The 2005 ruling expanded the use of eminent domain to virtually any project that is deemed to be a benefit to the community.
Inverse condemnation generally refers to the taking of private property by the government without using the eminent domain process. Inverse condemnation does not always mean the physical acquisition of the property itself. It can refer to the temporary taking or occupation of the property, even if sometimes for reasons of natural flooding or other disasters. A government regulation that deprives the property of its economic use and value is also a potential inverse condemnation.
A property owner can file suit for damages from inverse condemnation, but the burden of proof shifts from the agency taking the property to the owner.
If you’re faced with a condemnation or eminent domain proceeding, you have certain legal protections and rights you can seek to exercise. Though it’s difficult to stop a justified eminent domain taking, you can prolong the process to keep possession longer, and you can fight for a better market valuation and more generous payment than the condemnor may initially offer.
These are not steps you want to take on your own. The government will throw a battery of attorneys and experts at you. Let us deal with them and get you the just result and compensation you deserve.
Don’t feel hopeless in your eminent domain matter. If you’re in Philadelphia City or County, or nearby in the counties of Montgomery and Delaware, contact us at Richard L. Vanderslice, P.C. for an initial consultation. We know real estate and eminent domain law and can work with you to develop a strategy to help you pursue a fair result.