Takings and Eminent Domain
Government entities and other public service agencies must occasionally acquire private property for public use.
The process of acquiring private property for public use is called eminent domain or condemnation. When property is taken, the owner has a constitutional right to receive fair compensation.
Below you will find information about the eminent domain process in Utah and this Office’s role in helping individual land owners.
If your property is being acquired for a public use, please call the Office for further information and free assistance. We look forward to speaking with you.
You may find additional information about your rights as a property owner here:
A “taking” is any substantial interference with private property which destroys or materially lessens its value, or by which the owner’s right to its use and enjoyment is in any substantial degree abridged or destroyed. The most fundamental type of taking occurs when a government agency acquires ownership and possession of the property, but a taking can also occur when government regulations or actions substantially interfere with the use or enjoyment of property.
Determining whether a taking has occurred depends on the specific facts of each case. To begin with, an owner must have a protectible property interest. Expectations or future development plans are not considered property interests. Second, there must be an action that substantially interferes with the property interest. Because of the many factors that may be involved, we encourage you to contact the Ombudsman Office to discuss whether your situation is a taking.
“Eminent domain” (sometimes referred to as “condemnation“) is the power to compel the sale of private property to a condemning agency for a public purpose, subject to payment of just compensation. A condemning agency may file an action with a court, seeking an order forcing the property owner to transfer ownership. These agencies are obligated to follow specific requirements, including notifying property owners about the Office of the Property Rights Ombudsman, and participating in mediation and arbitration through the OPRO if requested by the property owner.
The Utah Code authorizes certain entities with the power to condemn property. These entities include most governmental agencies and some private parties like utility companies and railroads. In all cases, a condemning party must condemn property for a public use and pay just compensation to the owner.
Condemning parties must comply with federal and state constitutional provisions and statutory law when taking land by condemnation or eminent domain. The Fifth Amendment of the US Constitution provides “nor shall private property be taken for public use, without just compensation.” The Utah Constitution includes similar language, reading “private property shall not be taken or damaged for public use without just compensation” (Utah Constitution, Article I, § 22 ). The procedures for bringing an action for eminent domain are found in Title 78B, Chapter 6, Part 5 of the Utah Code.
The term “public use” generally means that the property will be used or available for a public purpose after it is acquired by the condemning party. Examples of public uses include roads, public buildings, schools, parks, etc. The Utah Code defines various uses that qualify as “public” for eminent domain purposes in § 78B-6-501 , and other enumerated public uses are found in other Code sections. “Public use” does not necessarily mean that the property must be owned by a government entity.
The condemning party must contact the property owner before it uses eminent domain to acquire land. Before a lawsuit to condemn property can be filed, negotiations must be undertaken to purchase it. In addition, the condemning party must disclose two things: (1) that oral promises are not binding on it, and (2) that the property owner has the right to request mediation or arbitration through the Office of the Property Rights Ombudsman.
The condemning party is generally required to conduct surveys, studies, tests and examinations in order to complete its project in a manner that will accomplish the “greatest public good and the least private injury.” To do that, the condemning party needs access to the property being acquired. The condemning party’s surveyors and consultants must give reasonable advance notice and can only visit the property at reasonable times. If desired, the property owner may accompany the surveyors. If access is refused, the condemning party may apply for a court order permitting access. If the property is damaged during the surveys, the condemning party must either pay for the damage or restore the property to its former condition.
A property owner has the right to receive a copy of the appraisal obtained by the condemning party as part of the condemnation process. If your property is being condemned and the appraisal has not been provided to you, please contact the OPRO to discuss your situation.
Federal and state laws require that a property owner be paid “just compensation” for its property acquired by a condemning party. Each piece of property is unique and “just compensation” must be determined on a case-by-case basis.
If the condemning party acquires your entire property (referred to as a “total take”), just compensation means the fair market value of the property. For a partial acquisition of your property (referred to as a “partial taking”), just compensation means the fair market value of any property and improvements actually taken by the condemning party, severance damages, project damages, and compensation for any temporary occupation of the property related to the project.
There are many factors involved in determining “just compensation.” Please contact our office to discuss your specific situation.
The Ombudsman’s Office was established to answer legal questions, discuss the law, and review options available to solve and avoid problems. The Office can also discuss your dispute with the entity involved, and can mediate and arbitrate takings disputes. The mediation and arbitration services provided by the OPRO are discussed in more detail here.
The OPRO is a neutral, non-partisan state office and does not represent any party in a dispute. While we cannot represent you, we can assist you in resolving your dispute in a condemnation or takings matter through education, negotiation, mediation and arbitration. Please give us a call so we can determine how our office can best assist you.
There is no fee for the OPRO’s attorneys to assist you with your takings or condemnation matter. Please call our office to discuss how we can best assist you.
Once a condemning party gives you an appraisal and an offer to purchase the property, the burden of proof shifts to you to prove that the value of your property is different than the amount offered by the condemning party. Often, this proof comes through an appraisal by an experienced eminent domain appraiser. If you believe the value of the property found in the condemning party’s appraisal is inaccurate, you should contact our office to discuss your situation.
If you request mediation or arbitration through the Ombudsman’s Office, a second appraisal may be ordered by the office if another appraisal is reasonably necessary to resolve the dispute. The condemning party will pay for this appraisal. If you feel that a second appraisal would be helpful to resolve your dispute, please contact the OPRO to discuss the situation.
The Ombudsman offers mediation and arbitration services to help you resolve disputes with condemning parties. The mediation and arbitration services provided by the OPRO are discussed in more detail here.
Under Utah law, a property owner may be eligible for relocation assistance if relocation of a home, farm, or business is necessary because of the condemnation. Eligibility for relocation and the amounts to be paid are determined by state law, and state and federal regulations. The OPRO may mediate or arbitrate a dispute as to the relocation amounts.
If the property owner and the condemning party are unable to reach an agreement on compensation, the condemning party likely will file a lawsuit to acquire the property through eminent domain. If you receive notice from a condemning party that it is proceeding with the condemnation of your property and has or intends to file a lawsuit against you, please contact our office to discuss your options and how we might assist you.
You do not need an attorney to participate in the mediation and arbitration services offered by the Ombudsman. You are welcome to retain an attorney to represent you at any time, including during any services provided by the OPRO. If you are in a condemnation lawsuit, we recommend that you retain competent legal counsel experienced in eminent domain matters.
