Eminent Domain: 3 Types of Takings

Real Estate Law

If required for public use, the government has the power to condemn (“take”) private property.

This governmental power, the power of “eminent domain,” exists at both the federal and state levels.

It also exists at the more local levels of government.

Every city, county, or other governmental entity—even the utility company—has the right to condemn private property if it is for public use.

Complicating the fact that so many different governmental entities can exercise the power of eminent domain, is that each one applies its own rules and procedures to how they exercise their right of eminent domain.

Not surprisingly, then, the law of eminent domain creates difficult and complex situations and the varying governmental needs and applications of the power of eminent domain can sometimes lead to abuse. One way in which Georgia has attempted to protect against the abuse of the power of eminent domain is by enacting a “Landowner’s Bill of Rights.”

Eminent domain is a highly complex area of law, and a variety of legal precepts apply to it. In today’s post we will be looking at the 3 different ways in which the government can “take” private property. For purposes of this short post, however, we will not be discussing the legal nuances of “public use” or what constitutes “just and adequate compensation,” so for more information on this topic, please consult with an experienced real property attorney.

Eminent Domain and 3 Types of Takings

  1. Physical takings

Probably the most obvious taking is a physical one. A physical taking of property is just that—the government condemns all or part of an individual’s private property.

The most common example of a physical taking is when a city or county or other governmental entity condemns private property to expand a highway or road or for other public purposes.

A physical taking can be either partial (i.e., only a portion of the entire amount of real property owned by an individual) or total (for example, the government condemns a house and all real property connected to it.)

  1. Regulatory takings

Regulatory takings exist when the governmental entity does not condemn property outright but rather regulates its use.

Zoning regulations are a good example of this. Zoning regulations can lead to complete or partial takings depending on how extensively they deprive a property owner of the beneficial use of his/her property.

Inverse condemnation actions, which are lawsuits brought by the property owner against the government, are used to challenge regulatory takings.

  1. Pro tanto

The third way in which the government may take property was established in a line of cases referred to as the “pro tanto” line of cases. In eminent domain cases, a pro tanto taking (which means, “for so much” or “as far as it goes”) refers to the court’s analysis of how much a public project has interfered with the economic success of a property or business.

It bears repeating that eminent domain cases are complex, difficult cases that require careful legal analysis at all levels. If you have questions, please consult experienced real estate counsel.

 Our Experience is Your Advantage.

At the Law Offices of Mark Weinstein, P.C., our clients benefit from our experience. We have extensive experience in real estate law. We have offices in Cumming, and we serve clients in Atlanta, Gainesville, Gwinnett County, Bartow County, Hall County, Henry County, Cherokee County, Clayton County, Cobb County, and other counties throughout Georgia. To find out what we can do for you, call us today at: 770-888-7707. Or you can e-mail us with inquiries at: lawofficesofmarkweinstein@gmail.com



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