Eminent Domain Law

Can the Government Take My Property Without Paying?

Some people may think that private property can only ever belong solely to the owner. However, the truth is a bit more complicated. When government agents seize private property, they may do so by claiming it's official business. But are such actions are always lawful? Here are some things to know about civil asset forfeiture.

Property Seizures

How can the government just seize someone's real property? One important concept is that of eminent domain, or the power of a government to command its citizens to sell their property to the state. Historically, eminent domain was used by federal and state government bodies to provide space for projects like transportation networks, national parks, monuments and historic sites. However, the Fifth Amendment requires that "just compensation" be given to the owner.

The government often takes property because it believes that doing so will serve the public interest. This action is known as a "taking."

When Can Government Takings Occur?

Judges can issue warrants to take property that:

  • Serves as evidence of criminal activity
  • Was derived from proceeds allegedly produced by crimes
  • Was used or intended to be used in committing a crime

Civil asset forfeiture is a controversial practice where police take property without actually charging someone with a criminal offense. Authorities often do this because properties like real estate are used in connection with crimes or for criminal purposes. However, they don't have to prove these allegations to conduct a taking.

The idea behind this process is to let the police stop organized criminal organizations from using their assets to commit crimes. Since this practice can victimize completely innocent people, civil asset forfeiture abuse has come under fire because police sometimes profit from selling seized assets. Police in states with strict forfeiture anti-abuse laws may also use more lenient federal laws to get around their local legal requirements.

Civil forfeiture differs from criminal forfeiture, which is when people lose their assets after being convicted. In civil seizures, police can file lawsuits against properties instead of against the owners. Since the property doesn't have the right to be assumed innocent until proven guilty, owners are responsible for providing evidence that their assets shouldn't have been taken in the first place. This kind of uphill battle makes it more difficult to fight back without help. Therefore, many people end up losing their property permanently when they fail to file recovery claims or countersuits in time.

Forced Sales and Abandoned Property

Adverse possession is a method that lets people obtain a title to a real property by openly using it for a specific period of time. This is also referred to as "squatter's rights". The rules for using adverse possession vary, but most laws include requirements that the squatter needs to hold the property continuously. If a property is abandoned, then the government may be able to dispose of it according to local rules.

Forced sales are common with assets like homes. According to the Florida State University Law Review, such sales can hit low-income property owners and minorities especially hard. For instance, property owned by certain ethnic groups may be sold for lower prices. Furthermore, people with less wealth often lack the money management experience to protect their estates from such large losses.

Some forced property sales follow partition actions, which are court decisions that split jointly owned property to resolve disputes. Partition action laws vary based on the type of conflict involved. For instance, North Carolina lets courts default to selling a property instead of partitioning if splitting it would injure one of the parties involved in the disagreement. Most states, however, ensure that partition rules come secondary to family law issues.

Just Compensation in Eminent Domain

Although lawmakers have always recognized the importance of letting the government obtain land to preserve the public interest, they've also tried to minimize the negative impacts on property owners. The Fifth Amendment to the Constitution says that the government can't take private property for public use without providing "just compensation" in return. In 2005, the U.S. Supreme Court in the landmark Kelo v. City of New London decision held that governments can force people to sell their private property for reasons such as developing the economy.

The definition of what counts as just compensation varies. For instance, Iowa and other states add the term "fair" and use independent value appraisals and other mechanisms to determine how much properties are worth so that their owners can be reimbursed properly. In Virginia, juries and commissions have the right to decide what constitutes just compensation unless owners fail to respond to seizure actions, in which case, it's up to the court.

Just compensation can be about more than a property's market value. For instance, someone who spent years building a house might have acquired sentimental attachments. People with special medical needs or disabilities may also take on higher costs than others when they have to move to new homes.

From valid eminent domain claims to civil asset forfeiture abuse, government property seizures take many forms. Those facing such actions should understand their options and be proactive about responding so that they can get compensated for their losses.