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How to challenge eminent domain

Posted by Jeffrey M. Neff | Jun 15, 2016 | 0 Comments

On behalf of Jeff Neff of Neff & Boyer, P.C. posted in Eminent Domain on June 30, 2016 by

While the government has a right to take private property for public use in Arizona and anywhere in the U.S., landowners also have the right to make a formal objection against eminent domain. There are several steps involved in this process that both parties are obliged to follow.

First, after the particular government entity has contacted a property owner regarding its desire to take possession of his or her private property, the property owner who objects to the offer must be given sufficient time to seek legal advice and plan a defense strategy. The property owner must also be given a fair hearing where the parties meet to arbitrate about the property in question, the amount of compensation offered for the property and how the government wants to use the property.

Further, the entity trying to acquire the property via eminent domain is required to negotiate a fair and acceptable price with the property owner. It will likely serve the property owner with a notice of intent, which will outline what it will pay for the property, how it intends to use the property and the property's boundaries. Following this notice, the property owner can proceed with counteroffers and mediation. If the matter is still unresolved, it may have to be settled in court. Then, if the property owner loses the case, filing an administrative appeal is the next step. If that step fails, the property owner could petition a court to hear the case based on a violation of the Fifth or Fourteenth Amendment to the U.S. Constitution. An appeal could last for several years and does not guarantee that the taking will be stopped.

Fighting the government regarding eminent domain issues is quite complex and tortuous. Property owners who are faced with these matters might want to speak with a real estate attorney who could explain their rights and options in going forward with the challenge.

Source: Findlaw, "Challenging Eminent Domain", June 15, 2016

About the Author

Jeffrey M. Neff

Jeffrey M. Neff is a real estate attorney in Tucson that has also been certified as a Real Estate Specialist since 1986 by the Arizona Board of Legal Specialization. Certification requ...

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