Eminent domain (United States, Philippines), land acquisition
(Singapore), compulsory purchase (United Kingdom, New Zealand,
Ireland), resumption (Hong Kong, Uganda), resumption/compulsory
acquisition (Australia), or expropriation (France, Italy, Mexico,
South Africa, Canada, Brazil, Portugal, Spain, Chile, Denmark, Sweden)
is the power of a state, provincial, or national government to take
private property for public use. However, this power can be
legislatively delegated by the state to municipalities, government
subdivisions, or even to private persons or corporations, when they
are authorized by the legislature to exercise the functions of public
In the Anglo-American historical context, property taken could be used
only by the government taking the property in question. The most
common uses of property taken by eminent domain have been for roads
and government buildings and other facilities, public utilities.
However, in the mid-20th century, a new application of eminent domain
was pioneered, in which the government could take the property and
transfer it to a private third party. This was initially done only to
"blighted" property, on the principle that such properties had a
negative impact upon surrounding property owners, but was later
expanded to allow the taking of any private property when the new 3rd
party owner could develop the property in such a way as to bring in
increased tax revenues to the government.
Some jurisdictions require that the taker make an offer to purchase
the subject property, before resorting to the use of eminent domain.
However, once the property is taken and the judgment is final, the
condemnor owns it in fee simple, and may put it to uses other than
those specified in the eminent domain action.
Takings may be of the subject property in its entirety (total take) or
in part (part take), either quantitatively or qualitatively (either
partially in fee simple or, commonly, an easement, or any other
interest less than the full fee simple title).
2 North America
2.1 United States
3.2 England and Wales
5 South America
7 Other countries
8 See also
10 External links
The term "eminent domain" was taken from the legal treatise De Iure
Belli ac Pacis, written by the Dutch jurist
Hugo Grotius in 1625,
which used the term dominium eminens (
Latin for supreme lordship) and
described the power as follows:
... The property of subjects is under the eminent domain of the
state, so that the state or those who act for it may use and even
alienate and destroy such property, not only in the case of extreme
necessity, in which even private persons have a right over the
property of others, but for ends of public utility, to which ends
those who founded civil society must be supposed to have intended that
private ends should give way. But, when this is done, the state is
bound to make good the loss to those who lose their property.
The exercise of eminent domain is not limited to real property.
Condemnors may also take personal property, even intangible property
such as contract rights, patents, trade secrets, and copyrights. Even
the taking of a professional sports team's franchise has been held by
the California Supreme Court to be within the purview of the "public
use" constitutional limitation, although eventually, that taking (of
the Oakland Raiders'
NFL franchise) was not permitted because it was
deemed to violate the interstate commerce clause of the U.S.
A taking of property must be accompanied by payment of "just
compensation" to the [former] owner. In theory, this is supposed to
put the owner in the same position "pecuniarily" that he would have
been in had his property not been taken. But in practice courts have
limited compensation to the property's fair market value, considering
its highest and best use. But though rarely granted, this is not the
exclusive measure of compensation; see Kimball Laundry Co. v. United
States (business losses in temporary takings) and
United States v.
Pewee Coal Co. (operating losses caused by government operations of a
mine seized during World War II). In most takings owners are not
compensated for a variety of incidental losses caused by the taking of
their property that, though incurred and readily demonstrable in other
cases, are deemed by the courts to be noncompensable in eminent
domain. The same is true of attorneys' and appraisers fees. But as a
matter of legislative grace rather than constitutional requirement
some of these losses (e.g., business goodwill) have been made
compensable by state legislative enactments, and may be partially
covered by provisions of the federal Uniform Relocation Assistance
Eminent domain in the United States
Most states use the term eminent domain, but some U.S. states use the
term appropriation (New York) or expropriation (Louisiana) as synonyms
for the exercise of eminent domain powers. The term condemnation
is used to describe the formal act of exercising this power to
transfer title or some lesser interest in the subject property.
The constitutionally required "just compensation" in partial takings
is usually measured by fair market value of the part taken, plus
severance damages (the diminution in value of the property retained by
the owner [remainder] when only a part of the subject property is
taken). Where a partial taking provides economic benefits specific to
the remainder, those must be deducted, typically from severance
damages. The former owners of the property rarely receive full
market value because some elements of value are deemed noncompensable
in eminent domain law.
The practice of condemnation came to the American colonies with the
common law. When it came time to draft the
United States Constitution,
differing views on eminent domain were voiced. The Fifth Amendment to
the Constitution requires that the taking be for a "public use" and
mandates payment of "just compensation" to the owner.
In federal law, Congress may take private property directly (without
recourse to the courts) by passing an Act transferring title of the
subject property directly to the government. In such cases, the
property owner seeking compensation must sue the
United States for
compensation in the U.S. Court of Federal Claims. The legislature may
also delegate the power to private entities like public utilities or
railroads, and even to individuals. The
U.S. Supreme Court
U.S. Supreme Court has
consistently deferred to the right of states to make their own
determinations of "public use".
In Canada, expropriation is governed by federal or provincial
statutes. Under these statutory regimes, public authorities have the
right to acquire private property for public purposes, so long as the
acquisition is approved by the appropriate government body. Once a
property is taken, an owner is entitled to "be made whole" by
compensation for: the market value of the expropriated property,
injurious affection to the remainder of the property (if any),
disturbance damages, business loss, and special difficulty relocating.
Owners can advance claims for compensation above that initially
provided by the expropriating authority by bringing a claim before the
court or an administrative body appointed by the governing
In many European nations, the European Convention on Human Rights
provides protection from an appropriation of private property by the
state. Article 8 of the Convention provides that "Everyone has the
right to respect for his private and family life, his home, and his
correspondence" and prohibits interference with this right by the
state, unless the interference is in accordance with law and necessary
in the interests of national security, public safety, economic
well-being of the country, prevention of disorder or crime, protection
of health or morals, or protection of the rights and freedoms of
others. This right is expanded by Article 1 of the First Protocol to
the Convention, which states that "Every natural person or legal
person is entitled to the peaceful enjoyment of his possessions."
Again, this is subject to exceptions where state deprivation of
private possessions is in the general or public interest, is in
accordance with law, and, in particular, to secure payment of taxes.
Settled case-law of ECHR provides that just compensation has to be
paid in cases of expropriation.
In France, the Declaration of the Rights of Man and of the Citizen
similarly mandates just and preliminary compensation before
expropriation; and a
Déclaration d'utilité publique is commonly
required, to demonstrate a public benefit.
Notably, in 1945, by decree of General
Charles de Gaulle
Charles de Gaulle based on
untried accusations of collaboration, the
Renault company was
expropriated from Louis
Renault posthumously and nationalised as
Régie Nationale des Usines Renault—without compensation.
England and Wales
Main article: Compulsory purchase in England and Wales
After his victory in 1066,
William the Conqueror
William the Conqueror seized virtually all
land in England. Although he maintained absolute power over the land,
he granted fiefs to landholders who served as stewards, paying fees
and providing military services. During the
Hundred Years War
Hundred Years War in the
14th century, Edward III used the Crown's right of purveyance for
massive expropriations. Chapter 28 of
Magna Carta required that
immediate cash payment be made for expropriations. As the king's power
was broken down in the ensuing centuries, tenants were regarded as
holding ownership rights rather than merely possessory rights over
their land. In 1427, a statute was passed granting commissioners of
Lincolnshire the power to take land without compensation.
After the early 16th century, however, Parliamentary takings of land
for roads, bridges, etc. generally did require compensation. The
common practice was to pay 10% more than the assessed value. However,
as the voting franchise was expanded to include more non-landowners,
the bonus was eliminated. In spite of contrary statements found in
some American law, in the United Kingdom, compulsory purchase
valuation cases were tried to juries well into the 20th century, such
as Attorney-General v De Keyser’s Royal Hotel Ltd (1919).
In England and Wales, and other jurisdictions that follow the
principles of English law, the related term compulsory purchase is
used. The landowner is compensated with a price agreed or stipulated
by an appropriate person. Where agreement on price cannot be achieved,
the value of the taken land is determined by the Upper Tribunal. The
operative law is a patchwork of statutes and case law. The principal
Acts are the Lands Clauses Consolidation Act 1845, the Land
Compensation Act 1961, the Compulsory Purchase Act 1965, the Land
Compensation Act 1973, the Acquisition of Land Act 1981, part IX of
the Town and Country Planning Act 1990, the Planning and Compensation
Act 1991, and the Planning and Compulsory Purchase Act 2004.
Basic Law for the Federal Republic of Germany
Basic Law for the Federal Republic of Germany states in its
Article 14 (3) that "an expropriation is only allowed for the public
good" and just compensation must be made. It also provides for the
right to have the amount of the compensation checked by a court.
Espropria, "expropiate". Protest graffiti in Turin
Esproprio, or more formally espropriazione per pubblica utilità
(literally "expropriation for public utility") in
Italy takes place
within the frame of civil law, as an expression of the potere
ablatorio (ablative power). The law regulating expropriation is the
D.P.R. n.327 of 2001, amended by D.Lgs. n.302 of 2002; it
supersedes the old expropriation law, the Royal Decree n.2359 of 1865.
Also other national and regional laws may apply, not always giving a
full compensation to the owner.
Expropriation can be total (the
whole property is expropriated) or partial; permanent or temporary.
The article 42 of the Italian Constitution and the article 834 of the
Italian Civil Code state that a private good can be expropriated for
public utility. Furthermore, the article 2 of the Constitution binds
Italian citizens to respect their mandatory duties of political,
economical and social solidarity.
The implementation of the eminent domain follows two principles:
legality: a public institution can exporpriate private goods only in
the cases law allowes it and respecting its procedures (following the
article 23 of the Italian Constitution);
compensation: (art. 42/III) the State must provide a certain amount of
money as compensation, which is determined by the law. According to
the Italian Constitutional Court, this compensation is not required to
be equal to the market value of the expropriated good, although this
sum must not be merely symbolic.
Nazionalizzazione ("nationalization"), instead, is provided for by
article 43 of the Constitution; it transfers to governmental authority
and property a whole industrial sector, if it is deemed to be a
natural or de facto monopoly, and an essential service of public
utility. The most famous nationalization in
Italy was the 1962
nationalization of the electrical power sector.
Article 33.3 of the
Spanish Constitution of 1978
Spanish Constitution of 1978 allows forced
expropriation ("expropiación forzosa") only where justified on the
grounds of public utility or social interest and subject to the
payment of appropriate compensation as provided for in law.
Expropriation. The right of state or municipality to buy property when
it is determined to be of "particular public interest", is regulated
in Expropriationslagen (1972:719). The government purchases the
property at an estimated market value plus a 25% compensation. The law
also states that the property owner shall not suffer economic harm
because of the expropriation.
Main article: Section 51(xxxi) of the Australian Constitution
In Australia, section 51(xxxi) of the Australian Constitution permits
the Commonwealth Parliament to make laws with respect to "the
acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make
laws." This has been construed as meaning that just compensation
may not always include monetary or proprietary recompense, rather it
is for the court to determine what is just. It may be necessary to
imply a need for compensation in the interests of justice, lest the
law be invalidated.
Property subject to resumption is not restricted to real estate as
authority from the Federal Court has extended the states' power to
resume property to any form of physical property. For
the purposes of section 51(xxxi), money is not property that may be
compulsorily acquired. (The following is cited by a
dead link) A statutory right to sue has been considered "property"
under this section.
The Commonwealth must also derive some benefit from the property
acquired, that is, the Commonwealth can "only legislate for the
Property for particular purposes". Accordingly, the
power does not extend to allow legislation designed merely to seek to
extinguish the previous owner's title. The states and
territories' powers of resumption on the other hand are not so
limited. The section 43(1) of the Lands Acquisition Act 1998 (NT)
grants the Minister the power to acquire land 'for any purpose
whatever'. The High Court of
Australia interpreted this provision
literally, relieving the Territory government of any public purpose
limitation on the power. This finding permitted the Territory
government to acquire land subject to Native Title, effectively
extinguishing the Native Title interest in the land. Kirby J in
dissent, along with a number of commentators, viewed this as a missed
opportunity to comment on the exceptional nature of powers of
resumption exercised in the absence of a public purpose
The term resumption is a reflection of the fact that, as a matter of
Australian law, all land was originally owned by the Crown before it
was sold, leased or granted and that, through the act of
compulsory acquisition, the Crown is "resuming" possession.
Brazil's expropriation laws are governed by the Presidential Decree
No. 3365 of July 21, 1941.
Art. 19, No. 24, of the
Chilean Constitution says in part, "In no case
may anyone be deprived of his property, of the assets affected or any
of the essential faculties or powers of ownership, except by virtue of
a general or a special law which authorizes expropriation for the
public benefit or the national interest, duly qualified by the
legislator. The expropriated party may protest the legality of the
expropriation action before the ordinary courts of justice and shall,
at all times, have the right to indemnification for patrimonial harm
actually caused, to be fixed by mutual agreement or by a sentence
pronounced by said courts in accordance with the law."
Land Acquisition in India and The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013
The Constitution originally provided for the right to property under
Articles 19 and 31. Article 19 guaranteed to all citizens the right to
'acquire, hold and dispose of property'. Article 31 provided that "No
person shall be deprived of his property save by authority of law." It
also provided that compensation would be paid to a person whose
property had been 'taken possession of or acquired' for public
purposes. In addition, both the state government as well as the union
(federal) government were empowered to enact laws for the "acquisition
or requisition of property" (Schedule VII, Entry 42, List III). It is
this provision that has been interpreted as being the source of the
state's 'eminent domain' powers.
The provisions relating to the right to property were changed a number
of times. The 44th amendment act of 1978 deleted the right to property
from the list of Fundamental Rights. A new article, Article 300-A,
was added to the constitution to provide, "No person shall be deprived
of his property save by authority of law." Thus, if a legislature
makes a law depriving a person of his property, it will not be
unconstitutional. The aggrieved person shall have no right to move the
court under Article 32. Thus, the right to property is no longer a
fundamental right, though it is still a constitutional right. If the
government appears to have acted unfairly, the action can be
challenged in a court of law by citizens.
Land acquisition in India is currently governed by The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, which came into force from 1 January 2014.
Until 2013, land acquisition in India was governed by Land Acquisition
Act of 1894. However the new LARR (amendment) ordinance 31
December 2014 diluted many clauses of the original act. The
liberalisation of the economy and the Government's initiative to set
up special economic zones have led to many protests by farmers and
have opened up a debate on the reinstatement of the fundamental right
to private property.
Under the Land Acquisition Act, 1894, the government has the power to
compulsorily acquire private land at the prevailing market rate for
public purposes such as roads, highways, railways, dams, airports,
Many countries recognize eminent domain to a much lesser extent than
the English-speaking world or do not recognize it at all. Japan, for
instance, has very weak eminent domain powers, as evidenced by the
high-profile opposition to the expansion of Narita International
Airport, and the disproportionately large amounts of financial
inducement given to residents on sites slated for redevelopment in
return for their agreement to leave, one well-known recent case being
that of Roppongi Hills.
There are other countries such as the
People's Republic of China
People's Republic of China that
practice eminent domain whenever it is convenient to make space for
new communities and government structures.
Singapore practices eminent
domain under the Land Acquisitions Act, which allows it to carry out
Selective En bloc Redevelopment Scheme
Selective En bloc Redevelopment Scheme for urban renewal. The
Amendments to the Land Titles Act allowed property to be purchased for
purposes of urban renewal against an owner sharing a collective title
if the majority of the other owners wish to sell and the minority did
not. Thus, eminent domain often invokes concerns of majoritarianism.
In the Bahamas, the Acquisition of Land Act operates to permit the
acquisition of land where it is deemed likely to be required for a
public purpose. The land can be acquired by private agreement or
compulsory purchase (s7 of the Act). Under section 24 of the
Acquisition of Land Act, the purchaser may purchase the interest of
the mortgagee of any land acquired under the Act. To do so, the
purchaser must pay the principal sum and interest, together with costs
and charges plus 6 months’ additional interest.
Since the 1990s, the Zimbabwean government under
Robert Mugabe has
seized a great deal of land and homes of mainly white farmers in the
course of the land reform movement in Zimbabwe. The government argued
that such land reform was necessary to redistribute the land to
Zimbabweans dispossessed of their lands during colonialism – these
farmers were never compensated for this seizure.
^ "Eminent Domain". The Free Dictionary. Farlex, Inc. Retrieved 26
^ Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law
(Seventh ed.). St. Paul, MN: Thomson West. p. 263.
^ "City of Oakland v.
Oakland Raiders (1982) 32 C3d 60".
Online.ceb.com. Retrieved 2016-08-08.
^ "New York Code, Public Lands, Art. 2, Sec. 27, Appropriations".
NYSenate.gov. The New York Senate. Retrieved 17 May 2017.
^ "Louisiana Revised Statutes, Title 19, Expropriation". Louisiana
State Legislature. Retrieved 17 May 2017.
^ Larson, Aaron. "Eminent Domain". ExpertLaw.com. ExpertLaw. Retrieved
17 May 2017.
^ "The Evolution of Eminent Domain: A Remedy for Market Failure or an
Effort to Limit Government Power and Government Failure?" (PDF).
Independent.org. Retrieved 2016-08-05.
^ See James v.the UK, decision of ECHR dated by 21 February 1986, para
^ a b "Louis
Renault and the shame of a nation". London: The Daily
Telegraph, Ian Morton. 14 May 2005.
^ "Foreign News: Was He Murdered?". Time Magazine. Feb 6, 1956.
^ "Art. 14 GG". Dejure.org. Retrieved 2016-08-08.
^ "D.P.R. 327/2001". Camera.it. Retrieved 2016-08-08.
^ "Dlgs 302/2002". Parlamento.it. Retrieved 2016-08-08.
^ In other countries (France, Germany, Great Britain, Germany) is
provised fair compensation according the free market value both for
regular expropriations or for absolutely unlawful occupations:
Buonomo, Giampiero (2003). "Occupazione acquisitiva: nodo irrisolto
nonostante le modifiche al Testo unico". Diritto&Giustizia
edizione online. – via
^ Assini, N.-Tescaroli, N. (2003). Manuale pratico
dell'espropriazione. Padua. CS1 maint: Multiple names: authors
Constitución Española de 1978 Art 33 part 3
^ "Expropriationslag (1972:719) (ExprL)". Lagen.nu. Retrieved
^ "Archived copy". Archived from the original on 2009-04-11. Retrieved
^ "Andrews v Howell (1941) 65 CLR 255". Austlii.edu.au. Retrieved
^ Australian Constitutional Commission, Final Report of the
Constitutionali Commission vol 1 (Canberra: Australian Government
Publishing Service, 1988): 600. ISBN 0-644-06897-3.
^ "Archived copy". Archived from the original on 2015-04-23. Retrieved
^ "Griffiths v Minister for Lands, Planning and Environment  HCA
20 (15 May 2008)". Austlii.edu.au. Retrieved 2016-08-08.
^ Reale, Andreana (2009). "Assisted Theft: Compulsory land acquisition
for private benefit in
Australia and the US". Alternative Law Journal.
Melbourne: Legal Service Bulletin Co-operative Ltd. 34 (3):
^ Samantha J. Hepburn, Principles of
Property Law, 2nd ed. (Newport,
NSW: Cavendish, 2001):45-46. ISBN 1-876905-08-5.
^ "DECRETO-LEI Nº 3.365, DE 21 DE JUNHO DE 1941". Presidência da
República. Retrieved 24 October 2017.
^ "Chile" (PDF). Confinder.richmond.edu. Retrieved 2016-08-08.
^ "Archived copy". Archived from the original on 2011-07-21. Retrieved
^ "The Constitution (Amendment)". Indiacode.nic.in. Retrieved
^ Tayal, B.B. & Jacob, A. (2005), Indian History, World
Developments and Civics, p. A-33
^ "The Land Acquisition, Rehabilation and Resettlement Bill, 2011 –
Full Text of Bill". Ministry of Rural Development, Government of
^ Bhattacharyya, Debjani (2015). "The history of eminent domain in
colonial thought and legal practice,
Special Section Artic… 9 Pages
The history of eminent domain in colonial thought and legal practice".
Economic and Political Weekly. 50 (50).
^ "The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance"
(PDF). Prsindia.irg. 2014. Retrieved 2016-08-08.
^ Mahapatra, Dhananjay (28 February 2009). "Should right to property
return?". The Times Of India.
^ Dancaescu, Nick. Note.
Land reform in Zimbabwe. 15 Fla. J. Int'l L.
"Eminent Domain". Encyclopædia Britannica (11th ed.).
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