The Difference Between Eminent Domain and Condemnation: What You Need to Know

While the terms “eminent domain” and “condemnation” are often used interchangeably, the difference between eminent domain and condemnation may come as a surprise to most. Eminent domain refers to the government’s power to take private property for public use, while condemnation is the legal process through which this power is exercised. Understanding these distinctions is crucial for property owners, as it can affect their rights and the compensation they receive.

Knowing the difference can help property owners navigate the complexities of property acquisition and ensure they receive fair treatment under the law.

Difference Between Eminent Domain and Condemnation

Understanding the difference between eminent domain and condemnation is essential for property owners. Eminent domain is the inherent right or power of the government to “take” private property for public use. The New Jersey Supreme Court has noted that the right of eminent domain is of ancient origin, inherent in all government, and requires no constitutional provision to give it force (Valentine v. Lamont, 13 N.J. 569 (1953)).

In New Jersey, the state is vested with the power of eminent domain as an attribute of sovereignty. The legislature may also delegate the power to other agencies and arms of the government, such as counties, municipalities, the New Jersey Department of Transportation, and the Casino Reinvestment Development Authority (N.J. Const., Art. 4, Sec. 6, par. 3). Notwithstanding this substantial power, the government may not take property for public use without paying the property owner “just compensation.”

What is Condemnation?

It refers to the process and procedure by which entities exercise their eminent domain authority. For instance, New Jersey’s “The Eminent Domain Act of 1971” (the “EDA”) provides uniform legal requirements for all entities vested with the power of eminent domain. In the most general terms, the EDA provides a four-step condemnation process:

• An attempt to resolve the property acquisition outside of litigation through bona fide negotiations between the condemning authority (the “condemnor”) and the property owner (the “condemnee”);
• If negotiations are unsuccessful, the condemnor must seek a final judgment from the Court duly authorizing the power of eminent domain;
• Thereafter, the Court appoints three commissioners who engage in non-binding arbitration related solely to the issue of “just compensation”;
• If a party appeals the “commissioners’ award,” a trial is held on the issue of “just compensation.”

In addition to the substantive condemnation process set forth in the EDA, the New Jersey Court Rules (R. 4-73, et seq.) specifically address (1) the initiation of the formal condemnation proceeding in Court, (2) the commissioners proceeding, and (3) the Law Division trial on the issue of just compensation. In sum, the term “eminent domain” refers to the government’s right to take private property, while “condemnation” is the process of actually carrying out that right.

Understanding the nuances of condemnation law is crucial for property owners facing eminent domain actions. Examples of eminent domain include the government acquiring land to build highways, public schools, or parks. Knowing the difference between eminent domain and condemnation helps property owners navigate the legal landscape and ensure they receive fair treatment and just compensation.

What It Means For Property Owners

Many property owners mistakenly believe that the government has unyielding power when exercising its right of eminent domain. However, understanding the difference between eminent domain and condemnation is crucial, as property owners are entitled to specific safeguards under the law to ensure the government acts within its constitutional and statutory limits. One noteworthy example is the right of a property owner to demand a jury trial to resolve the issue of just compensation following an appeal of a commissioners’ award. In numerous instances, a jury trial is a necessary mechanism for property owners to obtain the largest award of “just compensation” for their property.

Additionally, under the EDA, condemnors are required to engage in pre-litigation “bona fide negotiations” with the property owner. These negotiations aim to reach a fair settlement without resorting to litigation, providing property owners with an opportunity to negotiate better terms before formal condemnation proceedings begin. This aspect of condemnation law ensures that property owners have a say in the process and are not simply subjected to unilateral government action.

Despite these procedural safeguards, the vast amount of relevant case law demonstrates that the government does not always act within its bounds. Examples of eminent domain cases where property owners successfully challenged the government include instances where the taking was not for public use or where the offered compensation was deemed insufficient. Understanding your rights and the legal distinctions in eminent domain vs. condemnation can empower property owners to protect their interests and ensure fair treatment.

Conclusion

Understanding the difference between eminent domain and condemnation is essential for property owners who may face government acquisition of their property. While eminent domain refers to the government’s right to take private property for public use, condemnation is the legal process through which this power is exercised. Knowing the distinctions between these terms can help property owners navigate the complexities of property acquisition and ensure they receive fair treatment and just compensation.

Property owners are not powerless in the face of eminent domain. They are entitled to various safeguards, such as the right to a jury trial to determine just compensation and the requirement for condemnors to engage in bona fide negotiations. Despite these protections, government actions sometimes overstep legal boundaries, making it crucial for property owners to understand their rights and seek legal counsel.

Consulting with an experienced eminent domain attorney can provide property owners with the guidance needed to navigate these proceedings. By understanding the nuances of condemnation law and the difference between eminent domain and condemnation, property owners can better protect their interests and ensure they receive the compensation they deserve.

For over 50 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for staunchly defending its clients’ constitutionally recognized property rights. If you are confronted with the threat of eminent domain, please feel free to contact us for a consultation.