Through which method of involuntary alienation may the government take private land for public use?

As cities and towns expand and undertake improvements to roadways, sewer and power lines, communications, and other systems, the government must often secure or acquire access to private land. Without the government's power to take property, the capability of public infrastructure would not be able to serve the needs of society.

The right of the government to obtain private land for public purposes is known as eminent domain. This right derives from federal and state constitutions and related property laws.

Eminent domain allows the government to take private land for public purposes only if the government provides fair compensation to the property owner. The process through which the government acquires private property for public benefit is known as condemnation.

Also known as "taking," an example of government taking could include the expansion of a roadway or a new light rail station. The government can take private land for public use, which could include a shopping center or a park.

How the Government Takes Private Property

When the government makes plans for the expansion and improvement of publicly maintained roads and utilities, it determines which private parcels could be affected. The government will then work with its own appraisers to determine the appropriate price for the necessary property interests.

When the government has established its estimation of the property value, it may offer the landowner a particular price for the property. If the property owner agrees, the government buys the land. If the property owner disputes the government's valuation and they cannot agree on a price, the matter may go to condemnation proceedings.

During condemnation proceedings, the property owner will get to offer their own valuation for the property. Typically, the property owner will work with an attorney and an appraiser. The attorney will protect the property owner's legal rights respecting the involved property, and the appraiser will work to establish the property's fair market value. The property owner may also oppose a forced sale by contesting the government's proposed use of the property.

As an alternative, the landowner may also claim that the extent of the property the government is attempting to condemn is too great and that its purposes can be fulfilled with less intrusion. Generally speaking, the government is only allowed to invade the property rights of individuals to the extent necessary to accomplish the intended public purpose.

Value of the Property

Most condemnation proceedings turn on the value of the property at issue. How much a piece of property (or an interest in property) is worth depends on many factors. For a piece of undeveloped land with a single owner and no exceptional or unusual features, establishing the property's value may be fairly straightforward. The zoning of the property and the value of surrounding tracts will provide useful guidance for the calculation. In urban settings, however, the property is likely to be developed.

The unique characteristics of a property often result in a different estimation of value between the property owner and the government. In addition to an appraiser and an attorney, each side may use additional experts, such as engineers and architects.

Factors that are considered in property valuation include:

• Property size
• Zoning
• Existing buildings and roads are on the property
• Current use
• Potential uses
• Accessibility
• Other businesses or land uses that are adjacent or nearby
• Whether there are tenants or other leaseholders involved.

The property may represent the owner's livelihood so that to the owner it is worth everything they have invested in it, and all that can be derived from it. The state must pay relocation expenses, including equipment to the property owner.

To the government, the relevant value is the property's market value. The market value is based on what an interested buyer might pay to an interested seller. The valuation is also made as of a particular date. This is because property values can fluctuate over time. To arrive at one price, the determination is established as of one date.

The value determination is based on the amount of the acquisition. In some cases, the government may need to take all of the owner's property. In other cases, the government will only need a portion of the property or an easement. The value of these interests depends on the land involved, and on the effect the loss or intrusion of that land will have on the rest of the property.

Valuation Methods

When determining the value for a particular piece of property, appraisers and courts generally recognize three approaches:

• Market approach: The value for the subject property is based on recent sales of comparable, nearby properties. Based on these sales, the appraiser forms an opinion as to the price the property would bring on the open market. The market approach may be inappropriate if there have been no recent comparable sales in the area.
• Cost approach: Also called the depreciated replacement cost, this looks at how much it would cost to replace the land and existing structures, after factoring in depreciation.
• Income approach: This considers the investment value of the property. How much one would pay at the moment of valuation in light of the property's income potential?

Time of Property Valuation

Another point a property owner may contest is the time of valuation. This can happen when the government unreasonably delays its acquisition of the property. At the same time, the government actions may substantially diminish the subject property's value. For example, the government cannot buy up and condemn adjacent properties, destroy them or let them decay, and then lowball the remaining property owner once their own property value has fallen as a result.

The general rule is that the government does not have to compensate a property owner until it has taken his property or substantially impaired his ability to use it. The government may argue that it has not done so but the property owner can argue that the government's actions have made the property all but useless in the real estate market.

Condemnation proceedings derive from the simple principle that the government may secure private property to benefit the public. Yet, because of the many property uses and volatile real estate market, condemnation proceedings can be complex. The valuation figure that the government reaches may differ from the landowner's.

The eventual value may turn on the persuasiveness of the landowner's appraiser. The property owner's appraisal must also meet specific legal requirements. Fair value will be based on the extent of the property taken and an analysis of the many interests involved.

Is the Government Trying to Take Your Property? Get Legal Help.

For anyone attempting to prove a different value for the property, or limit the extent of a government's intrusion, the assistance of an experienced attorney can be a valuable asset. Contact a skilled eminent domain lawyer who can help you make informed and effective decisions based on the law.

You might be new to the business and still learning about the basics of real estate, and you’ve come across the term “Involuntary alienation” and wonder what it means.

Continue reading below to learn what involuntary alienation is and what it means to the real estate profession.

Involuntary Alienation Definition

Involuntary alienation is a term used in the real estate business that describes a type of title transfer. But not any kind of transfer, this is an involuntary loss of property and can occur through foreclosure, adverse possession, condemnation, bankruptcy, or death.

We understand that this might sound like a lot to swallow, but it’s quite simple once you understand the examples and occurrences. 

What Involuntary Alienation Is Not

If you still don’t entirely grasp the concept, it might be easier for you to master the term by understanding what it isn’t. Voluntary alienation, the opposing term to ours, occurs when an owner of a property wants to willingly sell or give away his or her ownership. It exactly opposes our term, or in other words, involuntary alienation occurs when a property is given away by law and without the owner’s consent. This is literally involuntary or without consent. Essentially, the owner is forced to forfeit their home. 

How Does Involuntary Alienation Occur?

So, when does involuntary alienation occur in the real estate business? You might be surprised how often it happens, and here is what takes place: 

• Transfer by descent

• Natural processes

• Escheat

• Foreclosure

• Eminent domain

• Forfeiture

• Partitioning 

• Adverse possession

If any of these situations occur, you might be in store for involuntary alienation. We will now elaborate on all of these themes, so you can understand the topic as much as possible. 

Transfer by Descent

The lightest of all is a transfer by descent, it occurs when a landowner dies without a will or heir. Then the State intervenes and determines who the rightful heir of the property is, to pass the legal title onto them.

Natural Processes

Avulsion and erosion occur when either the land goes to waste because of natural processes or disasters, like earthquakes or landslides. 

Escheat

This process is close to transfer by descent, once the owner dies without a will or heir, and the closest heirs can’t be determined, escheat takes place. The State then reverts the property to itself. 

Foreclosure

Who hasn’t heard about foreclosure? The most common occurrence of involuntary alienation is when a bank evicts the residents because of unpaid loan balances. In other words, foreclosure is a circumstance where one loses their property due to unpaid debts. 

Eminent Domain

Eminent domain holds condemnation under its power, or the State can take ownership of a property from the original owner for public use. The State will pay the owner for the property but they are involuntarily alienated from it. 

Forfeiture

Forfeiture occurs when the new owner of the property disobeys the deed or will by which they took the land into possession. This can occur when one uses the land for something the deed forbids or uses it outside the line of the deed. 

Partitioning 

This is a simple concept, where a property owned by two or more people is divided into sections.

Adverse Possession

Adverse possession takes place when an individual that is not the owner of the property gains legal title over it by continuous possession of the whole or part of the property. Of course, there are conditions to this situation, and these are:

• Open and notorious - Easily seen and known to others

• Continuous - Use is without interruption for a certain time, in most cases, it’s 7 years

• Adverse and hostile - To the property