Eminent domain
Posted on:3/30/2006
| Eminent domain (US), compulsory purchase (United Kingdom, New Zealand), compulsory acquisition (Australia) or expropriation (Canada, South Africa) in common law legal systems is the power of the state to expropriate private property without the owner's consent. |
The term eminent domain is used primarily in the United States, where the term was derived in the mid-19th Century from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. The term compulsory purchase, also originating in the mid-19th Century, is used primarily in England and Wales, and other jurisdictions that follow the principles of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign.
Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale. In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.
Some coined the term expropriation to refer to "appropriation" under eminent domain law, and may especially be used with regard to cases where no compensation is made for the confiscated property. Examples include the 1960 Cuban expropriation of property held by U.S. citizens, following a breakdown in economic and diplomatic relations between the Eisenhower Administration and the Cuban government under Fidel Castro.
The term "condemnation" is used to describe the act of a government exercising its authority of eminent domain. It is not to be confused with the term of the same name that describes the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects. Condemnation via eminent domain indicates the government is taking the property; usually, the only thing that remains to be decided is the amount of just compensation. Condemnation of buildings on grounds of health and safety hazards or gross zoning violation usually does not deprive the owner of the property condemned but requires the owner to rectify the offending situation.
The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).
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