When The Government Takes Your Property, What Are You Entitled To?

When the government takes your property, the Constitution of the United States (and every state Constitution) requires that you must be paid “just compensation” (i.e., fair market value) for the property it has taken, as well as compensation for damages to the part it has not taken (if the taking is partial) (see Section 7 below).

Any person with an interest in the property taken has a potential claim. This includes, of course, the fee owner of the property. But it also can include lessees, and mortgagees, as well as owners of fixtures and equipment affected by the taking (see Sections 16, 17 and 27 below).

In the State of New York, the condemnation procedure is governed by the Eminent Domain Procedure Law (EDPL) which applies to all condemnations, including those undertaken by the State, municipalities, and state and local agencies.

The answer to this question is simple: anything and everything provided that it pays just compensation. Except if limited by the enabling statute (and this limitation will usually only be applied to subordinate government agencies or subdivisions), the power to take is, as a practical matter, virtually unlimited. The government can take real property, personal property, trade fixtures, leasehold interests, contractual rights, franchises, and entire businesses.

A taking can be “partial;” for example, when the government takes some frontage to widen a road; or it can be “total” when the government takes the entire property. It can be permanent (i.e., the government owns it forever) or temporary (i.e., taking a portion of real estate to provide for construction, at the end of which the property is returned).