I’ll huff, I’ll puff, and I’ll blow your house down…should the government be allowed to take your property?

While many Americans are familiar with the Fifth Amendment to the United States Constitution, they often associate this with the popular phrase promoting against self-incrimination, “I plead the Fifth”.  Little do they realize the true scope of this amendment, including the government’s ability to seize their property.  The Fifth Amendment states that no person shall be, “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.  While this may seem to be a sound provision to the sacred document prescribing our freedoms, it is often abused by governments to take away and limit these same freedoms.  At the time the U.S. Constitution was created, land ownership determined a person’s social status and ultimately, their right to vote.  Thus, it is no surprise that our Founding Fathers felt it indispensable to include certain protections for our property rights.  Since then, there have been several instances in which eminent domain, the right of a government to expropriate property for public use, has been dissected to determine whether it was executed constitutionally.  While there are checks and balances over the government to ensure it is regulated, their powers may still be abused.  One of those powers being the ability to condemn or take possession of private property to “serve the public good”. This begs the question, should the government be allowed to take your property? 

In Florida, in order for the state government to utilize their eminent domain powers, certain conditions must be met. The government must utilize the property for the “public good” and the property owner must be compensated for what is being taken.  Problems typically stem from the government’s offer for compensation.  The Fifth Amendment requires that “just compensation” be made for the property.  However, who ultimately makes the decision as to what is considered “just”?  Bingo!  The government.  The government hires an appraiser to determine the value of the property.  Once a determination is made, an offer is submitted to the property owner.  If the government does not receive a response or the offer is rejected by the property owner, they would need to file a lawsuit to proceed with their taking.  Historically, fighting the government, especially in a legal dispute, is never easy.  While it may seem like the government’s power has no limit, the inclusion of the phrase “just compensation” within the Constitution means, if the government is going to take rightfully owned land from someone, the landowner has the right to at least be paid fairly.  No one wants to fear the possibility of the government taking their home, especially if attaining their home was a battle in itself.  Imagine losing a childhood home filled with endless memories, nostalgia, and surrounded by beloved neighbors.  Most times, these once homeowners would rather keep their adored home than keep the government’s pocket change. 

Challenges may also occur with the governments proposed plan to take property for the “public good”.  While the government has the authority to obtain privately owned property, the purpose must be legitimate.  Part of this legal process involves the government’s justification for their plan of action.  If their reasoning is invalid and acquiring the land is not a necessity for their proposed project, the property owner should legally get to keep their land.  In order for the property owner to defend themselves against the unnecessary taking, they will need to provide evidence establishing that the government’s plan could have been achieved without this particular property.  One of the difficulties a property owner may face with this is the fact that “public purpose” often has a broad interpretation in the eyes of the law.  In Kelo v. City of New London, the U.S. Supreme Court decided eminent domain can be utilized to transfer privately owned land to another private owner.  This 5-4 decision was a huge failure by our highest judicial branch to interpret the Constitution. As stated in the dissenting opinion of Justice O’Connor, “any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random.  The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” 

When the government sets their sights on a valued piece of property, they will be successful in their mission unless the property owner puts up a fight.  The government essentially has limitless resources, i.e., time, money, staff, to ultimately get what they want.  While the property owner may win the “war” and keep their property, or at least be fairly compensated, their efforts would require them to hire a skilled attorney, one who fully understands all of the components to eminent domain, to even have that fighting chance.  Initially, it may seem like a hassle to hire an attorney for representation in an eminent domain matter, but the benefit to being informed of your legal rights is always priceless.  The eminent domain process can be extremely complex, which is why having legal representation ensures your best interests, and your constitutional rights, are protected.  While the government may have the ability to exercise eminent domain to take property from the rightful owner, there are several instances in which this power can be halted and our Constitutional rights restored.