Definition
Eminent domain is the inherent governmental power to take private property for a public use, provided the government pays the owner just compensation. It is sometimes called the "power of condemnation" or simply "condemnation." The constitutional authority comes from the Fifth Amendment to the U.S. Constitution, which states that private property shall not be "taken for public use, without just compensation" — and is applied to state and local governments through the Fourteenth Amendment.
In California, the exercise of eminent domain is governed by the Eminent Domain Law (Code of Civil Procedure §§ 1230.010–1273.050), which specifies the procedures cities and counties must follow to acquire property through condemnation.
The Three Requirements
For a valid exercise of eminent domain, three requirements must be met:
- Public use: The property must be taken for a public use. This requirement is broadly construed — courts have upheld takings for roads, schools, utilities, parks, and even economic development in certain circumstances. California's constitution is somewhat more restrictive than the federal standard after the controversial Kelo v. City of New London (2005) decision.
- Necessity: The agency must make a finding of necessity — that the property is necessary for the project and the project is planned in a manner that will be most compatible with the greatest public good and least private injury.
- Just compensation: The owner must be paid the fair market value of the property — what a willing buyer would pay a willing seller in an arm's length transaction. This typically requires an appraisal and may be contested in a court proceeding (known as a "valuation trial").
The Condemnation Process in California
- Resolution of necessity: The governing body adopts a resolution of necessity finding the public use, necessity, and that the project is planned to minimize private injury. Property owners must be notified and given an opportunity to appear and be heard.
- Offer to purchase: The agency must make a written offer to the owner based on a certified appraisal, at the fair market value of the property.
- Filing of complaint: If negotiations fail, the agency files a condemnation complaint in superior court.
- Prejudgment possession: The agency may obtain immediate possession of the property by depositing the probable compensation into court — giving the owner access to the funds while the valuation is litigated.
- Valuation trial: If the parties cannot agree on value, a jury determines just compensation based on appraiser testimony and comparable sales evidence.
Eminent domain is a blunt instrument with significant legal, financial, and community relations consequences. Cities that initiate condemnation without thorough legal preparation — particularly around the resolution of necessity process and appraisal methodology — risk delays, excess awards, and reversal of necessity findings. Legislaide helps cities review their condemnation procedures against current statutory requirements.
Frequently Asked Questions
What is eminent domain?
Eminent domain is the inherent governmental power to take private property for a public use, provided the government pays just compensation. It is also called condemnation. The constitutional authority comes from the Fifth Amendment's Takings Clause, applied to states and cities through the Fourteenth Amendment.
What are the three requirements for a valid eminent domain taking?
(1) Public use — the property must be taken for a public purpose (broadly construed, though California is somewhat more restrictive than federal law after Kelo); (2) Necessity — a finding the property is necessary for the project; and (3) Just compensation — payment of fair market value to the property owner.
What is the condemnation process in California?
The process includes: adoption of a resolution of necessity by the governing body, a written offer to purchase based on a certified appraisal, filing a condemnation complaint if negotiations fail, prejudgment possession by depositing probable compensation into court, and — if needed — a valuation trial to determine just compensation.
What is just compensation in an eminent domain case?
Just compensation is the fair market value of the property taken — what a willing buyer would pay a willing seller in an arm's length transaction. The parties exchange appraisals; if they cannot agree on value, a jury determines the amount at a valuation trial based on appraiser testimony and comparable sales evidence.
What is the difference between eminent domain and inverse condemnation?
In eminent domain, the government initiates formal proceedings and pays compensation upfront. In inverse condemnation, the government takes or damages property without formal proceedings — and the property owner must initiate a legal claim to recover just compensation after the fact.
Published June 1, 2026 by Legal Team at Legislaide.