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What is Eminent Domain?

July 31, 2020, Written by Vanessa Freitas

Eminent Domain is the power of the government to acquire private property for public use under the theory that this power is an attribute of the sovereignty of the government.

The private landowner, however, is protected by the Fifth and Fourteen Amendments to the U.S. Constitution, which states that “nor shall private property be taken for public use, without just compensation.” The California Constitution provides the same protection. This means that whenever the Federal or State government takes property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property.

Eminent domain can be exercised to acquire privately-owned land for public use, such as Kings County is currently experiencing with the High-Speed Rail. Land has also been acquired for courthouses, forts, highways, and other public spaces such as parks.

In order to obtain the land, it has to be privately held and the owner is unwilling to sell it outright to the government. The government may take all or some of a landowner’s property, which is usually called a taking. The landowner, however, must receive “just compensation.” But what is just compensation? Because the government (Federal or State) has the right to take the land, the majority of the litigation surrounding eminent domain involves determining what is just compensation. Just compensation means the fair market value of the property on the date it is appropriated.

The State will present the landowner with an offer to purchase the land, along with its appraisal of the fair market value of the property. Oftentimes, the State’s appraisal will differ greatly from the landowner’s perception of value, usually because the landowner has a more detailed understanding of how much his or her property is worth. For example, a farmer is more likely to know the value of his or her orchard’s infrastructure and production than the State. As such, the landowner often will obtain an independent appraisal. This may be much higher than the State’s, depending upon factors such as crop production over time, age of the trees, installation of new irrigation, etc.

The theory behind just compensation is that the landowner should not bear the full cost of the public benefit, but that the entire public (because they are receiving the benefit of the taking, such as using a highway) must also shoulder the compensation to the landowner. The courts have long supported this theory, finding that “The right of eminent domain…cannot be exercised except upon condition that just compensation shall be made to the owner;…it is the duty of the state…to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.” Searl v. School Dist., 133 U.S. 553, 562 (1890).

As the parties (landowner and government actor) negotiate their way through the eminent domain process, they can arrive at a value, or compensation, that is acceptable to the landowner. As with many government functions, this process can be long and complicated. Dias Law Firm, Inc. has represented many local landowners in this type of litigation. Call our office today for a consultation with our experienced attorneys.

By: Paula C. Clark, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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Categorised in: Practice

Bankruptcy: You may be able to keep your home and car

July 10, 2020, Written by Vanessa Freitas

Have you been thinking about bankruptcy?

You are not alone. While employment statistics reported in June of 2020 were slightly better than May, California’s unemployment rate was still at 16.3% and over 3 million fewer Californians are currently employed compared to last year (source: California’s Employment Development Department press release, June 12, 2020). In economically troubling times, bankruptcy could be the best option for more and more Californians.

Many people wonder about keeping their property, especially their home and vehicles, when they file for bankruptcy. Bankruptcy is a complicated subject, and there are usually at least 2 different types of bankruptcy that people can choose to file. One of those, called “Chapter 7” after the name of the chapter of the federal Bankruptcy Code, can result in a complete discharge of most or sometimes all unsecured debt without repaying anything to creditors. However, there are some limitations to how this works. Sometimes debtors who do not understand bankruptcy laws make assumptions that simply are not true. This can result in disastrous results if their home, car, or even business assets are seized and sold.

When debtors (this is what the Bankruptcy Code calls individuals or married couples) petition the court to resolve their debt, they submit their financial situation to an administrative review by a trustee who must determine whether their unsecured assets meet the standards for exemption from being seized and sold to pay their creditors. A complicating factor is that California has 2 different systems for exempting certain property from being sold in chapter 7 bankruptcy. One of those systems is more generous to debtors with equity in a home, while the other is more generous to persons with equity in personal property like vehicles.

One of the most important things a bankruptcy attorney can do for debtors is to properly classify their assets and choose the exemption system that allows them to keep the most, or the most important assets. A bankruptcy attorney can also help debtors determine whether chapter 7 (discharging all debts) or chapter 13 (a court-managed repayment plan) makes the most sense.

Don’t try to navigate this complicated subject alone. The experienced bankruptcy attorneys at Dias Law Firm, Inc. in Hanford offer a free 30-minute consultation to debtors who are considering filing for bankruptcy. Bankruptcy probably is not as expensive as you think, and we offer payment plans for your legal fees if you decide to proceed. Give us a call today!

By: David M. Lange, Esq.

Categorised in: Practice