Eminent Domain FAQ's

Eminent domain is the governmental power to take private property for a public purpose.  When the federal, state or local government, or any agency possessing the power of eminent domain such as the Massachusetts Highway Department or the Massachusetts Bay Transportation Authority, need a piece of property for a public purpose, it can take the title to that property from the owner by eminent domain.  In Massachusetts, the procedures for exercising power of eminent domain are set forth primarily in the Massachusetts General Laws Chapter 79.
How does Eminent Domain work?
Once the taking authority decides to take a piece of property, it hires the appropriate professionals to determine the property’s fair market value.  The taking authority will always hire a real estate appraiser to determine the property’s fair market value, and depending upon the complexity of the property’s value, the taking authority may also hire engineers and additional experts to analyze the property and to assist the appraiser in determining the property’s fair market value.  The second step is to draft a taking plan, which shows precisely the property that will be taken.  The third step is to perform a title search on the property to determine the property’s owners and others who may have an interest in the property.  The fourth step is to record the taking order at the registry of deeds where the property is located. Once a taking order is recorded, it acts like a deed, conveying the property’s title from the owner to the taking authority.  The fifth step is to send a notice of taking to the property owner informing the property owner that the taking has occurred.  The sixth and final step is to pay the property owner the taking authority’s opinion of the fair market value, which is often referred to as the “pro tanto” payment.


Can you stop the eminent domain taking from happening?
The United States Constitution and the Massachusetts State Constitution both require that for an exercise of the power of eminent domain to be valid, it must be for a public purpose.  In general, the taking authority satisfies the public purpose requirement when the project for which the taking is made will protect or promote the public health, welfare or safety.  Examples of typical public purposes include the opening, widening or other reconstruction of roads, protecting the environment or redeveloping blighted, decadent or open areas.  In addition, recent United States Supreme Court decisions have greatly expanded the scope of what may constitute a valid public purpose, which makes stopping an eminent domain taking an increasingly difficult endeavor.


What does “just compensation” mean?
Massachusetts courts have defined “just compensation” to mean the property’s “fair market value,” which is defined as “the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market.”  Epstein v.  Boston Housing Authority, 317 Mass. 297 (1944).  This means that the property’s value must be determined as though the property was sold in the free and open market on the date it was taken, and that the price was determined by fully informed and willing parties on the valuation date, neither of whom were under any compulsion to sell or buy.  The goal is to determine the highest price that the buyer would have been willing to pay, and that the seller would have been willing to accept for the property taken.
What is the valuation date?
The valuation date is the date that the taking order is recorded in the registry of deeds.  Therefore, the fair market value to which the property owner is entitled is determined as of the date on which the taking order is recorded, often referred to as the “valuation date” or “taking date”.  This means that the property’s fair market value is determined as if a hypothetical sale took place on the date that the taking order is recorded in the registry of deeds.
What is the pro tanto payment?
Massachusetts General Laws Chapter 79 requires the taking authority to determine its opinion of the property’s fair market value, and then offer that amount to the owner.  The owner can either accept the amount offered by the taking authority as full compensation for the taking or can accept it as a payment pro tanto, which means the payment is accepted as a partial payment subject to the owner’s assertion that it is insufficient and does not represent the fair market value of the property taken.  The phrase “pro tanto” is Latin for “so far” or “to that extent,” and indicates that the property owner has accepted the taking authority’s payment as only part of the just compensation that is due.  By accepting a pro tanto payment, the owner can file a lawsuit against the taking authority within three (3) years of the date that the taking order is recorded in the registry of deeds, and this lawsuit will be decided by a judge or jury.


When will I get paid?
Massachusetts General Laws Chapter 79 requires that the check for the pro tanto  award “shall be issued either within sixty days after the right thereto becomes vested, or within fifteen days after demand therefor by any person entitled thereto is made.”  This means that the taking authority must pay for the property within sixty (60) days of the taking order being recorded at the registry of deeds.  Sometimes it can take a little longer, but the taking authority must pay interest on the pro tanto payment from the taking date until the date of payment.
Can I keep the pro tanto payment and also file a lawsuit?
Yes.  If an owner accepts a taking authority’s offer of just compensation as a payment pro tanto, then the owner maintains the right to file a lawsuit against the taking authority within three (3) years of the date that the taking order is recorded in the registry of deeds.  The taking authority will generally require an owner whose property is taken to sign a receipt acknowledging that he has received the pro tanto payment, and this is called a pro tanto receipt.  Therefore, if you do not believe you have been fairly compensated for the taking, make sure you consult an attorney specializing in eminent domain prior to signing anything, so that you do not waive any rights to bring a lawsuit to obtain the property’s fair market value.


How long will it take for my case to be tried?
Just as every piece of property is unique, so are eminent domain cases involving the valuation of property rights.  Cases can range from being straight forward to extremely complicated.  Typically, cases can be tried or resolved within two (2) to three (3) years from the date that the lawsuit is filed.
What is involved in preparing a case for trial?
Because the vast majority of eminent domain cases are brought solely to determine the fair market value owed to the property owner, preparing a case for trial generally starts with research at the appropriate registry of deeds in order to determine the nature and characteristics of the property rights that need to be valued.  In addition, because the issue is the property’s fair market value, it is an absolute necessity for the owner to hire a real estate appraiser to perform appraisal services and provide an expert opinion and testimony regarding the property’s fair market value and the taking’s effect on any property that remains in the owner’s possession after the taking.  In addition, it is frequently necessary for the owner to hire an engineer to provide advice and testimony regarding the manner in which the property could be developed on the taking date pursuant to local and state land use regulations.   Other experts may be necessary depending on the particular characteristics of the land, such as experts to provide opinions regarding wetlands and environmental issues.  It is the attorney’s job to hire and coordinate all research and experts, develop a theory of the case that ties all elements of the property’s fair market value together and prepare all legal pleadings, exhibits and documents necessary to present the case at trial.