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Eminent domain in Delaware explained

On Behalf of | Jul 25, 2014 | Real Estate Transactions

Private property ownership is one of the bedrocks of American society. However, the government reserves the right to obtain privately owned real estate to further its ends. This is known as “eminent domain,” and it is a somewhat controversial, but long-standing law, both on the federal and state level.

The Fifth Amendment to the U.S. Constitution created the power of eminent domain by requiring the government to provide a property owner just compensation. The difference between this and a normal real estate transaction is that the seller has a choice in the matter.

Traditionally, authorities used eminent domain to obtain land necessary for public projects like roads and schools. However, in 2005 the U.S. Supreme Court expanded the legal power to include seizing land and transferring it to private business entities. In a 5-4 ruling, the Court ruled that economic development is a “public use” within the terms of the Fifth Amendment.

The ruling was highly controversial, with many observers criticizing it as a huge expansion of government power. Many states amended their laws to forbid private enterprise as a legitimate justification for using the eminent domain power. Delaware law specifically excludes “the generation of public revenues … through private land owners or economic development” as a reason to take privately owned real estate. Another section forbids the use of eminent domain “other than for a public use.”

Real estate law can be complex, and the stakes can be high. An experienced attorney may help you avoid large financial losses or the loss of your home.