Eminent domain—also called condemnation—is the government’s authority to take private property for public use, provided it offers fair compensation. This power ensures the government can build and maintain the infrastructure and institutions needed to serve the public.
Originally, eminent domain supported essential public works—such as transportation systems, water supplies, and defense facilities. Eminent domain has enabled major projects from canals and railways to courthouses and interstate highways. Over time, the purposes for which eminent domain has been exercised have expanded, sometimes with controversy—most notably in the 2005 Kelo decision, where the U.S. Supreme Court ruled the government may use eminent domain to take private property and transfer it to another private party if the taking serves a public purpose, such as economic development.Eminent domain is also provided in the Georgia Constitution. Under Article I, Section III, Paragraph I, private property cannot be taken or damaged for public purposes without just and adequate compensation being paid.
Types of Takings
Condemning authorities can acquire fee-simple ownership (full title), permanent easement rights (partial use), or a temporary easement.
- Fee simple means the government owns the land outright and the former owner retains no rights.
- Permanent easements allow the government to use part of your property indefinitely—often for drainage, utilities or slopes—while you retain ownership of the property.
- Temporary easements give short-term access for construction work, such as driveway adjustments associated with road improvements.
Because easements are limited, compensation is typically calculated as a percentage of the full land value, but their real-world effect can, and often is, substantial. For example, you typically cannot build on that portion of the land on which there is an easement. Therefore, before resolving your eminent-domain case you must understand the effect such taking will have on your ability to use your property.
The Condemnation Process- What to Expect
When property owners first learn their property (or more typically a portion thereof) will be condemned, they are unsure how to proceed. Often, the first representative who contacts a property owner has relatively little knowledge of the project and limited authority to meaningfully increase the compensation offered. Unfortunately, many property owners accept whatever compensation is first offered and sign the documentation presented to them.
The compensation you are first offered may be slightly below market value—or it may be well below market value. Just and adequate compensation—the amount needed to make property owners whole for what they lose—is usually based on fair market value and may include both the property itself and related improvements such as driveways, fences, or signage. Condemning bodies frequently undervalue takings because they fail to contemplate future uses of property. For example, while the loss of less than a tenth of an acre from a vacant three-acre parcel may seem insignificant, it may mean fewer townhomes can be built on the lot, resulting in a significant loss of value to the property owner.
While it is usually not possible to stop a condemnation, in some cases it may be possible to reduce its size or scope. Projects are designed as a whole, and particular attention may not have been given to each affected parcel. If your goal is to reduce the impact of a taking, it is important to have the condemning officials meet you at the property to discuss the impact and ways it may be mitigated. Additionally, you’ll likely need to request project details and other construction information from the condemnor.
Georgia law requires compensation not only for the land acquired but also for any consequential damages to the property that remains. Before accepting an offer, you should know whether it includes both, how the appraiser determined value, what comparable sales were used, and whether business or relocation losses were considered. An independent appraisal from an experienced condemnation expert is often the best way to determine if the government’s offer is truly fair.
Inverse Condemnation
Georgia not only allows formal eminent-domain proceedings initiated by the government, but also provides property owners a remedy when the government effectively takes or damages property without following condemnation procedures. This is known as inverse condemnation—a way for property owners to seek compensation in these situations, for example, when road construction leads to flooding, or when utility installation substantially interferes with the use or value of property. Unlike typical cases, causes of action for inverse condemnation must be initiated by a property owner.
The Bottom Line
Eminent domain usually cannot be stopped, but its impact can sometimes be reduced—and compensation increased, perhaps significantly. If you’ve received notice that your land may be condemned, take note of any legally required timeframes in which to file a response. At the same time, work to understand the scope of the project and its impact on your property, gather information about the value of your property, and consider consulting with legal experts experienced in condemnation matters.
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