When the government needs land to widen a highway, install a power line, extend light rail or build a runway, it just takes it from the surrounding landowners.  Is this fair, or legal?  I don’t know about fair, but it is legal.  The authority for public (i.e. government) taking of land for public use, referred to as exercising powers of eminent domain, is rooted in the Constitution.  The Fifth Amendment to the U.S. Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

“I plead the Fifth” refers to exercising the privilege against self-incrimination, and the Fifth Amendment is, of course, the source of the Miranda warnings that grant a person under arrest “the right to remain silent…”  It is somewhat odd that this same Amendment provides the basis for taking private property, but when you consider that the Fifth Amendment is mostly about the government separating its citizens from things in general—be it their money, liberty, freedom or, in the case of condemnation, their land—it makes more sense.

As clearly stated in the Fifth Amendment, if private property is taken for public use, the owner must be paid “just compensation.”  But how is just compensation calculated, and how does the condemnation process work?  For individual land owners, it’s pretty simple.  The two parties typically negotiate a price based on one or more appraisals of the property, and agree to terms of a voluntary sale.  If the two sides can’t agree, they go to court.  There are laws that control how the process works, when legal fees are awarded, and so forth.  The laws are such that they greatly encourage negotiated sales rather than court battles.

However, when common areas of homeowners associations or common elements in condominiums are condemned, or “taken,” the situation is much more complex than when dealing with a single landowner.  Condominiums and HOAs often have specific requirements in their governing documents that require specific steps, such as notification of owners and their lenders, timeframes for holding meetings with owners, and distribution of the “just compensation” amongst the owners in certain, specific ways. Beyond logistics, just informing and updating your association members on the condemnation process can be difficult.

Barker Martin has assisted a number of clients through the condemnation process.  If your association receives a notice of condemnation, or an offer to purchase in lieu of condemnation, we are here to help.