Description of the Concept of Eminent Domain - Term Paper Example

Description of the concept of eminent domain Eminent domain is an action by the state of confiscating an expropriate property, private property of a citizen, or even seize the rights of a citizen in property with unpaid monetary recompense, but without the consent or permission of the owner. The property is taken for use either by the government or even by delegation to the third parties who will allocate it to civic or public use, and economic development in some instances. The most frequent uses of the property taken by the eminent domain are for highways, public utilities, and railways; however, we find that it might also be taken for reasons of the safety of the public, like in the Centralia, Pennsylvania case. Nevertheless, some jurisdictions necessitate that the government body or department offer to buy the property before choosing to use the eminent domain. The 5th Amendment of the United States Constitution According to the 5th Amendment of the United States Constitution, ‘there shall be no taking of private property fro public use, without proper compensation.’ Nonetheless, eminent domain has been in place since the United States of America has been in existence or was established. The 5th Amendment of the United States Constitution only brought about the concept of just compensation. However, without this Amendment, we find that the government could seize whatever property they wished with no compensation. This is not a fair policy The city pays homeowners in a section of the city with low-housing costs. The city has the plans of putting up or establishing a new housing development hopping to attract the higher-income families. However, the former owners of the homes are given compensations for their home; in some instances, given more that the estimated value of their homes. This actually sound good to some extent. However, the problem that arises is that the previous owners of the homes are not in a position of affording housing in the newly established development; this forces them to move far from their original neighborhood. This greatly changes a neighborhood’s composition, and there is no way of getting to know whether it will be favorable of not. One could loose historically significant structures only because they appear to be found in the way of a new project. Individuals could get considerably less funds than for that the total worth of their property is. Eminent domain, back in the old days, was used in taking a piece of land for civic or public use like bridge, dam, road or new lake. The individual was always given ‘fair market value’ for the property seized. For instance, even though an individual got compensation for his or her junky old house, we find that the individual staying in that house might have planned to live there until his or her death, then the government comes and makes the individual sale the property by force, and now he or she has to use what he or she was given by the government as compensation for the property to stat another life elsewhere. At times they normally find themselves buying much more expensive pieces of land than what they wanted, along with the extra higher property taxes they had hoped to avoid by just living in an old house. The Supreme Court has made a ruling a private individual is allowed to as a governing board to ‘take’ the property so that he or she can be able to establish a new housing development or even a shopping center, all because it is considered to be for the ‘good of the public, being that there will be generation of more taxes, and that clearly gives good reason for taking property from one individual and then handing it over to another only for money reasons. National rulings regarding eminent domain Several rulings have been made by the government through the Supreme Court regarding the eminent domain, whereby some have appeared to be fair while others not. The Supreme Court in ‘Clark vs. Nash’ (1905, agreed that parts of the nation have extraordinary situations, and thus, the public use description varied with the case’s facts. The eminent domain’s extensive interpretation was ascertained in ‘Berman vs. Parker’ (1954), whereby the Supreme Court reviewed an attempt by the District of Columbia of seizing and razing old structures, for the purpose of eradicating slums in Washingtonn. The Supreme Court in ‘Hawaii Authority vs. Midkiff’ (1984), allowed the use of the law in the transfer of the title of a land lessor to the tenants who occupied and owned the homes that were built on the leased land. Unfair ruling in Kelo v. City of New London 2005 Appellants, led by Kelo never agreed to sell their properties arguing that the appropriation of their property would have violated the Fifth Amendment’s ‘public use’ requirement; since their land would be turned over to the private sectors or organizations immediately to stimulate the local economy as well as promoting a larger tax base. However, the Supreme Court allowed the New London Development Corporation to continue with the use of the power of domain to ensure that they seized the property from the owners. Here, we see the government’s slippery side of abuse of power, together with the inappropriate conclusion or judgment that the term ‘public purpose’ fulfils the clause of ‘public use.’ Losses incurred by property owners Historically, eminent domain has been a power granted to the government for use in circumstances whereby the confiscating of land in for the good of the public. Nevertheless, the U.S. Supreme Court ruling, which extended this power to even the private sector, actually puts several communities at danger of losing their native lands. Displaced businesses at times cannot be in a position of moving their tangible but mobile or movable assets without having to experience a loss of value. For instance, as a store is shut down for shifting, we find that inventory might be disposed or sold at a discount. Some of the inventory items such as scrap metal or even liquor stock cannot be moved in an economic and reasonable manner. Eminent domain is a critical tool The eminent domain is an important tool for the revitalization of cities and the improvement of life quality in the surbabian and urban regions. The use of this policy has been fundamental to the success of the redevelopment of projects across the nation. From the 42nd Street in the City of New York and the Washington’s Pennsylvania Avenue, to Greenville, South Carolina, and Kansas, Kansas City, the efforts by the public of bringing new life to declining regions would not be easy without the eminent domain’s power. Several icons of the United States’ urban renovation have been made easy by the use of eminent domain powers by the government in the projects of redevelopment such as the renovated Times Square and Lincoln center in New York, the Inner Harbor in Baltimore, and Mission Bay together with Yerba Buena areas in San Francisco. The redevelopment projects I other towns and suburban areas, industrial districts and commercial centers have actually appeared to be a success at the renewal of the worn-out and poorly developed regions. Even though governments usually gather redevelopment areas by negotiation of sales by the owners of the properties, it is always essential to execute the eminent domain power to clear the titles of the forgotten or abandoned properties and also to obtain offers at reasonable prices. The states and federal government abuse the power the constitution gave them The current application of the doctrine of eminent domain is representative of a steady degradation of individual property rights. Although the 5th Amendment, which protects the eminent domain clause, states that property can only be appropriated for a "public use. While governments are authorized to invoke eminent domain – the power to take property by force – only when the property is to be employed for public uses, such as highways, schools and courthouse, local governments routinely seize private homes, small businesses or farms and hand them over to wealthy developers who have ‘better plans’ for the property. Abuse of Power explores the widespread exploitation by local officials in the name of the ‘greater good’. Your home and business are not safe. Government can grab them at any time using anti-property redevelopment laws, paying you a pittance. Government then can give your property to a private company to develop as a mall or theme park. Homeowners’ Association Homeowners’ associations refer to organizations that consist of all unit owners in a common interest development, and are empowered to enforce the conditions, agreements, and restrictions as well as management of the common facilities of the development. Many homeowners’ associations are presently non-profit making organizations, and are regulated by the state laws that govern the non-profit making organizations together with homeowner associations. The homeowners’ associations help in maintaining an enjoyable and favorable community for the inhabitants. The CC&R helps in regulating the appearance of properties, levels of noise and behavior. Several community management associations provide facilities like clubhouses, pools, gyms and playgrounds for the use by their members. Some others provide services like repairs and landscaping. Eminent domain laws need to be overhauled One major issue with the current eminent domain law is that it greatly encourages the individuals or parties who seek to denounce a property to present the possible lowest fair offer. This law should be changed in a way such that it should need good faith offers from all of the condemning parties. Some rules exist that help in protection landowners; however, it can always be expensive to fight in an eminent case with court fees and lawyer retainers. This law should be overhauled so that the parties in the case should be should be expected to pay all the fees incurred by the landowners in their attempts to challenge unfair offers. The eminent domain law should also address or deal with the diminished access. In several cases, the government takes the owner’s property away from him forcefully without being given any money or compensation. They normally turn around and sell the owner access to their personal property. The property owners should be paid for the diminished access by the government, and not the other way round. Conclusion Controversy associated with the eminent domain is just as strong at preset as it was more that two hundred years ago, and for good reason. However, the only critical thing now is the stopping of this slippery side of abuse before it is extended. It started as a joke in the Berman case, whereby one man lose property due to the Public Use clause’ misinterpretation, and has finally let to about fifteen individuals losing their property only for allowing space for the development of private real-estate; and not a public use. I believe that it is very important for the constitution to be amended so that this clause can be changed to become reasonable for the purpose of avoiding further public outcries and losses. This is very important because even the Supreme Court in several occasions has appeared to make some shocking rulings are clearly unfair to the property owners despite their relentless appeals. Work cited Berliner, Dana. Public Power, Private Gain. Washington, D.C.: Castle Coalition, 2003. Print Dyson, Deborah. Eminent Domain: Public Use. St. Paul: Research Dept., Minnesota House of Representatives, 2006.Print Ryskamp, John. The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch, New York: Algora Publishing, 2006. Print Supreme Court Cases: The Dynamic Court: Berman v. Parker. (1999).Print Read More