Alabama Eminent DomainWhen the State takes Private Property

The power of eminent domain is a power given to federal, state, and local governments to take private property for public use. The U.S. Constitution, as well as the Alabama Constitution, require the state to provide “just compensation” to property owners whenever it exercises its eminent domain power.

Landowners are often caught off guard when they learn that the government intends to take their property. When this happens, it is good to know the procedures that the government has to follow, and how an attorney can help.

The power of eminent domain is limited to property that is being taken for “public use.” Common examples of public use include new roadways, roadway expansions, state parks, public utilities, and even private developments that will generally benefit the public and local economy, such as new retail or commercial developments.

For example, in Kelo v. City of New London , the U.S. Supreme Court held that the city of New London, Connecticut, could take property from several landowners that would be used by private developers for “economic development.” More specifically, the city intended for the property to be developed into a new state park and marina, as well as a new office and research facility for Pfizer Inc. The Supreme Court found that this taking was consistent with the definition of “public use” under the Takings Clause of the Fifth Amendment, but that state governments can further limit the use of eminent domain powers if they so choose.

The Kelo decision illustrated that the definition of “public use” is broad, and that the federal, state, and local governments can take private property for virtually any purpose that provides a benefit to the general public – even if the general public does not directly “use” the property.

The Alabama Eminent Domain Code (Ala. Code § 18-1A-1 et seq.), consistent with the U.S. Constitution, requires the State to pay “just compensation” for a total or partial taking of property for public use. The Eminent Domain Code also applies to county, municipal, and city governments when exercising their power of eminent domain.

When the State chooses to take property for public use, it must first conduct an appraisal of the property and make an offer to the landowner that is based on that appraisal. These appraisals are often far below what the actual fair market value of your property might be. If the landowner rejects the offer, the State will then file a Complaint for Condemnation with the probate court for the county in which the property is located. These proceedings are known as “Condemnation” proceedings. The Probate Court will usually determine two questions (1) if the State has the power to take the subject property, and (2) what amount of “just compensation” is due to the landowner.

After the Probate Court issues its final judgment, the State or the landowner may choose to appeal the case to the circuit court for the county in which the property is located. The Circuit Court will then hold a trial de novo – a new trial – in which the Probate Court’s decision is disregarded. An appeal to Circuit Court is often advantageous to a landowner since the amount of “just compensation” will be determined by twelve jurors rather than a real estate appraiser or judge.