Three Palms Real Estate

Eminent domain

Eminent domain (US), compulsory purchase (United Kingdom, New Zealand, Republic of Ireland), compulsory acquisition (Australia) or expropriation (Canada, South Africa) in common law legal systems is the lawful power of the state to expropriate private property without the owner's consent, either for its own use or on behalf of a third party. The term eminent domain is used primarily in the United States, where the term was derived in the mid-19th century from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. The term compulsory purchase, also originating in the mid-19th Century, is used primarily in England and Wales, and other jurisdictions that follow the principles of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign.

Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale. In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.

Some coined the term expropriation to refer to "appropriation" under eminent domain law, and may especially be used with regard to cases where no compensation is made for the confiscated property. Examples include the 1960 Cuban expropriation of property held by U.S. citizens, following a breakdown in economic and diplomatic relations between the Eisenhower Administration and the Cuban government under Fidel Castro. U.S. nationals and corporations held vast amounts of Cuba's prime real-estate. Cuban authorities offered just compensation for US properties, as they had successfully done for Spanish, British and French properties when they nationalized private property in Cuba, for the common good. However, U.S. authorities refused, adhering to the notion that those properties are still privately owned by U.S. interests forty five years later. This is in direct contrast with recent rulings by the US Supreme Court which allows a corporation to displace a private citizen from his/her realty, if the corporate development is considered to be in the best interest of the municipality.

The term "condemnation" is used to describe the act of a government exercising its authority of eminent domain. It is not to be confused with the term of the same name that describes the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects. Condemnation via eminent domain indicates the government is taking the property; usually, the only thing that remains to be decided is the amount of just compensation. Condemnation of buildings on grounds of health and safety hazards or gross zoning violation usually does not deprive the owner of the property condemned but requires the owner to rectify the offending situation.

The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).
Contents

* 1 Origins
* 2 Allodial vs Feodal Title
* 3 United States

Origins

The power of eminent domain in English law derives from the form of real property. Many landowners assume that their property right is absolute under the law, but this is rarely the case. Instead, a county or other authority has created the property in fee simple, a concept that derives from feudal fiefs. The same authority may void (or condemn) the fee and seize the land, as when a landowner fails to pay property tax. According to William Blackstone,

"The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure. ... Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands."

English-speaking countries that never had the feudal system have perpetuated the system of fee-simple property, including the power of eminent domain, for legal continuity, primarily because, as former colonies of the British Empire, their land were at one time conquered by the British monarchy, giving the monarchy Allodial Title to that land.

Allodial vs Feodal Title

Allodial Title is the title to land generally held in freehold, by an individual or group that is sovereign on that land. Thus, in English Law, only the Monarch holds Allodial Title. All others are tenants of the sovereign through their feudal vassalages. Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through Right of conquest. In this respect, while colonial American land grants were typically feudal grants in fee-simple, the victory of the American cause in the Revolutionary War is considered an act of conversion to allodial title, such that the King was no longer the sovereign of the colonies, however the new holders in this case are the several states that engaged in the revolution, and it is upon this basis that the practice of fee-simple titles is continued in the United States. This is an issue of dispute by right wing groups, however, with some individuals occationally attempting to patent allodial titles to their land. Some states, namely Nevada have instituted an Allodial Title Program in which property owners can purchase Allodial Title to their land essentially by paying an amount discounted from the sum of all future property taxes for the term of the owners life expectancy.

United States

In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that the property be taken for "public use". These requirements are sometimes called the "takings clause." Most courts have used "just compensation" to be the fair market value of the condemned property. Over the years the definition of "public use" has expanded to include economic development plans which use eminent domain seizures to enable commercial development for the purpose of improving the community. [1] Critics contend this perverts the intent of eminent domain law and damages personal property rights.

The current Supreme Court understanding dates back to Justice O'Connor's Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)[2] decision. Supporters contend that it is necessary to the improvement of communities in many situations in which transactions costs will prevent private parties from reaching efficient use of land. This was generally affirmed by the Susette Kelo, et al. v. City of New London, Connecticut, et al., 125 S. Ct. 2655 (2005)[3], more commonly Kelo v. City of New London decision, however the justices recognised that the several states have the authority to pass statutes or state constitutional amendments further restricting eminent domain if they so choose. Many have taken up the challenge, with Alabama, New Hampshire, and several other states passing temporary statutes as well as constitutional amendments to restrict eminent domain strictly to uses in which the property will be owned by a government entity. Conversely, some other communities have taken Kelo as a license to seize at will.

In Calder v. Bull, 3 U.S. 386 (1798), Justice Samuel Chase thought it was preposterous for the government to take one person's property with no restriction and give it to another private party for their own profit.

In other cases, eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [4], a community group in Boston, Massachusetts, which attained the right to eminent domain and has used it to reclaim vacant properties for the purpose of positive community development.

In the United States the use of eminent domain has been a powerful driver in the development of the country and its defense structure, enabling connections to be created that would have been unlikely without its use. In the last century it was a tool that enabled the construction of the many defense installations during World War II and the Cold War. Beginning in the early 1950's the Interstate Highway System began and eminent domain was used to purchase the 42,000+ miles of rights of way needed for construction. Without eminent domain the Interstate would never have been built out to its current extent. Its use has until recently been almost totally used for such public works, additionally including ports and airports and government complexes nationwide.

The abuses of the exercise of these powers in the past have led to substantial safeguards to the public today, including extensive requirements to force the various governments units that use eminent domain to document the need for it and allow the public access to and comment on the proceedings before the real property can be "taken". Federal statutes require complete relocation programs to be administered by the various states in order to receive Federal participation in the costs of the improvements (often 80%) and further require full certification that the public process and benefits were offered to the "claimants" and that the benefits were actually paid to the correct claimants and displacees. The use of eminent domain has slowed dramatically nationwide as the full build-out of the Interstate System approaches and reflects the fact that needs in the future will be for mostly projects of a local nature, such as schools, local highways and other such improvements. The extensive use of eminent domain for such purposes as economic development are currently under attack in many jurisdictions and a rush to pass state statutes to limit this use is being contemplated in more than 30 states as this is being written in December 2005. Governor Richardson of New Mexico became the first governor to veto eminent domain reform legislation resulting from this recent surge in public interest.

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Gulf Shores and Orange Beach Area Info

Climate
The Gulf Coast Area has a mild climate with an average annual temperature of 67.4 degrees. The average temperature in January is 51.4 degrees. The average temperature in July is 81.8 degrees. The average annual precipitation is 67 inches, and the growing season is 292 days.

Education
Education is a fundamental block in building a bright future. The Gulf Coast Area opened a brand new high school during 1999 in Gulf Shores (ph. 251.968.4747). The area has two elementary schools; they are Gulf Shores Elementary (ph. 251.968.7375) and Orange Beach Elementary (ph. 251.981.5662). Gulf Shores Middle School (ph. 251.968.8719) offers an excellent curriculum in preparation for high school. All public schools are part of the Baldwin County school system. If you are interested in private education, you also have the option of Bayside Academy (ph. 251.955.5211), which includes age 3yrs – Grade 4.

Healthcare
The nearest hospital is South Baldwin Regional Medical Center (ph. 800.580.3627) located in Foley. South Baldwin Medical Center offers 24-hour emergency services (ph. 251.952.3400). Numerous medical professionals practice in the area providing both family practice and specialized care.

Airports
Corporate and Private air service is available in Gulf Shores from the Jack Edwards Municipal Airport, with a full Instrument Landing System and the longest paved runway being 7000 feet. The closest commercial air service is available in Pensacola, roughly 30 miles away, at the Pensacola Regional Airport (ph. 850.435.1746). Major carriers serving the airport are Continental, US Airways, Delta, Northwest, and American. Other commercial airports are located in Mobile (ph. 251.633.0313) and Gulf Port, Mississippi (ph. 228.863.5951).

Shopping
The area offers many shops ranging from casual apparel and beachwear to upscale fashion and specialty boutiques. If you are a bargain hunter, you can find 120 factory outlet stores in Foley.

Parks and Recreation
The nearest state park is the Gulf State Park (ph. 251.948.7275). The 6,000-acre park area offers campsites, picnic areas, 18-hole golf course, 825 foot fishing pier, 144 room hotel and convention center. Other parks in the area include Bon Secour Wildlife Refuge (ph. 251.540.7720), Meyer Park (ph. 251.968.4420), Johnnie Sims Park and Kids Park (ph. 251.968.4420), and Wade Ward Nature Park (ph. 251.968.4420).

State/Local Income Tax
For detailed information about Alabama income tax, contact the Alabama Department of Revenue, Individual and Corporate Tax Division (ph. 251.242.1000). In most instances, local governments in Alabama do not levy city, town, or county income taxes.

Property Taxes
Property (Ad Valorem) taxes are taxes on real business and/or personal property. “Ad Valorem” means “according to value”. For details, call the Revenue Commissioner’s office (ph. 251.943.5061, ext. 2840).