What is Eminent Domain?

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.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

Photo credit: ID 122511589 © Larry Metayer | Dreamstime.com

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

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.

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.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

ID 179633655 © Inna Dodor | Dreamstime.com

Small Business Benefits Under the CARES Act

The Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, was signed into legislation on March 27, 2020, and was intended to redress some of the economic pain our nation is suffering as a result of COVID-19.  This article will address three sections of the CARES Act aimed at helping small businesses during these difficult times:  (1) Paycheck Protection Program (PPP) Loans, (2) forgiveness of PPP Loans, and (3) the Emergency Economic Injury Disaster Loan Program and Grant.

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The Families First Act: The Federal Government’s Response to COVID-19

In response to the escalating spread of the COVID-19 virus, and to reduce the impact of the virus on families and the economy, Congress passed and President Trump signed into law the Families First Coronavirus Response Act.  Known as the Families First Act, the law creates expanded employee benefits and protections related to COVID-19, including a new federal paid sick leave law, an emergency expansion of the Family and Medical Leave Act (FMLA), and expanded unemployment insurance provisions.

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Owner Liability for Dog Bites in California

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Overview of Recent Changes in Employment Law in California for 2020

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Overview of Recent Changes in Landlord-Tenant Laws in California for 2020

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Employers: Do You Have to Reclassify Your Independent Contractors in 2020?

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The new year is fast-approaching and employers should be aware that several new labor and employment laws will become effective when the clock strikes midnight and the last of the confetti falls.  In fact, the California legislature and Governor Newsom passed several significant laws this year that will go into effect on January 1, 2020. (more…)

California’s New DUI Law and Ignition Interlock Devices

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An ignition interlock device is a blood alcohol testing device similar to a breathalyzer that is wired into a vehicle’s ignition system. The device requires a breath sample from the driver in order to start the engine. (more…)

Living In A Social Media World: How Social Media Can Cause a Business to Be in Violation of the Law

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Over the past decade, social media and its numerous platforms have grown exponentially.  While social media, undoubtedly, has its perks, it has proven to have a number of pitfalls. (more…)

Settling Divorce Actions Between Military Service Members by Default

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The Servicemembers’ Civil Relief Act (SCRA) is a federal law (50 U.S.C. §§ 3901-4043) that provides a wide range of benefits and protections to those in military service.  The SCRA also provides certain benefits and protections to dependents and, in certain instances, to those who co-signed a loan for, or took out a loan with, a servicemember.  (more…)

Modifying an Irrevocable Trust: An Introduction to California’s Uniform Trust Decanting Act

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Generally, an irrevocable trust, by its terms, is one that cannot be modified.  However, the Probate Code identifies limited circumstances in which modification is allowed, (more…)

Can an Employer Be Found Liable For The Sexual Harassment of Its Employees By Customers or Clients?

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When one thinks of sexual harassment at work, the visual that comes to mind is a boss or co-worker being the offender.  However, a customer or client may be the person treating the worker improperly. Depending on the situation, reporting such issues to management may be even more difficult than reporting on a supervisor or co-worker. (more…)

Drug Testing for Parents in Family Court

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When parents divorce or partners separate and children are involved, custody often becomes an issue.  As such, the court’s main concern is the best interest of the child.  Many factors can be considered by the courts, including substance and alcohol abuse. (more…)

New Changes to Response Times for Unlawful Detainer Actions

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In California, when a landlord wants a tenant to vacate their leased premises, a landlord may have to have court involvement and file an unlawful detainer (“UD”) action to have the tenant removed.  A UD action can be initiated for a variety of things, but the most common actions stem from the tenant failing to follow a provision of their lease. (more…)

Wage and Hour Expanded – Do You Owe Your Salaried Employees Overtime?

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There’s a commonly held belief among both employers and employees that salaried employees are not entitled to be paid overtime, however, this isn’t always true. In fact, the amount you have to pay an overtime exempt employee from year-to-year has probably changed a lot since the last time you thought about making your valued employee a salary man (or woman!). (more…)

What Happens to Our Pets During Divorce?

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Going through a divorce can be a difficult process. No one enjoys dividing their property and it is especially emotional discussing custody plans for your children, but what about your family pet(s)? Because California is a community property state, the courts recognize pets as personal property and when a couple divorce, each spouse is entitled to half the value of the animal. (more…)

Post Judgment Relief in Criminal Matters, Part One

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Everyone makes mistakes…but they don’t have to stay on your record forever. Many criminal defendants who are charged with crimes spend a lot of time and effort to fight the case. However, the fight does not end when the criminal defendant is convicted. (more…)

Wage and Hour Claims

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As an employer, state and federal laws establish how much an employee can work and how an employee must be compensated for those hours worked. Failing to follow these laws allows an employee to sue the employer, and in some instances, the employer could be subjected to civil and/or criminal penalties. (more…)