Eminent Domain

The government may acquire or take private property for public use through eminent domain authority. This authority is limited by the Fifth Amendment of the U.S. Constitution, which provides that private property shall not be taken for public use without just compensation.

The
Issue

The government has the authority to appropriate a citizen’s private property without consent. However, the Fifth Amendment of the U.S. Constitution limits that power by requiring just compensation  for the owner of  the property. In a decision announced on June 23, 2005, the U.S. Supreme Court ruled 5-4 in the case of Kelo v. City of New London that the City's condemnation of several privately-owned parcels pursuant to a comprehensive economic development plan did not violate the Fifth Amendment of the U.S. Constitution. As a result, many states are considering additional restrictions on their use of eminent domain to clarify what constitutes a valid public use under their state laws.

Position

  • The federal government should not use federal programs or funding as a means to impose limitations on the use of eminent domain by state and local governments.
  • Each state should exercise its sovereign authority to determine the appropriate use of eminent domain.
  • The NAIOP chapters in each state are best positioned to determine their policy on the proper use of eminent domain in their state.

Status

Several states are currently considering eminent domain policies. To view current legislative activity within your state, visit NAIOP's state legislative monitoring service (Members Only). You will need to log in using your member number and password to obtain the password for this service.

Resources

Fifth Amendment of U.S. Constitution

History of Federal Use of Eminent Domain

US Housing and Urban Development – Eminent Domain

Congressional  Research Service – Takings Decisions of the U.S. Supreme Court: A Chronology

Contact

Toby Burke
Associate Vice President for State and Local Affairs
703-904-7100, ext. 116