What Is Eminent Domain: Who Can Take Property, What They Must Pay, and What Landowners Can Do

Eminent domain is the legal power to take private property for a public use while paying required compensation. The Fifth Amendment (opens in a new tab) says, "nor shall private property be taken for public use, without just compensation." That federal baseline applies to federal takings and, through the Fourteenth Amendment, limits state takings too. The details vary by jurisdiction: state statutes decide which agencies, utilities, pipelines, railroads or other entities may condemn, what steps they must follow, how compensation is measured, and what challenges an owner can bring. Condemnation is the court or administrative process used to carry out the power.

What should you understand after a letter or survey stakes?

A letter, a set of survey stakes, an appraisal or a map of a proposed road or pipeline can all raise the same questions. Who is behind the project, what law gives them authority, and what happens next? The answers depend on who the condemnor is, the statute it relies on, the project's stated purpose and the state where the property is located.

Texas offers a useful example. The Texas Attorney General publishes the Landowner's Bill of Rights (opens in a new tab), which lists what a Texas landowner is entitled to when property is condemned: adequate compensation, a taking only for public use, a taking only by an entity authorized by law, notice, a written appraisal from a certified appraiser, a bona fide offer before a lawsuit, and a hearing before three court-appointed special commissioners. It also states that the owner may hire an appraiser, an attorney or both, and may seek a trial and an appeal. Those are Texas rules; they do not apply nationwide.

A practical first step in any state is to keep every document: the letter, the map, the offer, the appraisal and any project papers. Write down the date each notice and offer arrived, because response periods often run from those dates.

Who may condemn property?

Federal agencies may condemn when federal law authorizes the acquisition for a public purpose. 40 U.S.C. § 3113 (opens in a new tab) lets federal officers with authority to acquire real estate for public buildings or other public uses use judicial condemnation, and 40 U.S.C. § 3114 (opens in a new tab) governs a federal declaration of taking.

States, counties, cities, utilities, pipeline companies, railroads and other private entities do not share identical powers across the country. Each one's authority has to come from the applicable constitution or statute. In Texas, article I, section 17 of the Texas Constitution (opens in a new tab) recognizes takings by the State, a political subdivision, the public at large, or an entity granted eminent-domain power by law. Texas Government Code Chapter 2206 (opens in a new tab) applies to both governmental and private entities and lists public uses that include utility services and common-carrier pipeline operations.

Other states set their own rules. New York's Eminent Domain Procedure Law (opens in a new tab) covers acquisitions of real property in that state, with sections 201 through 207 addressing public-project determinations and judicial review. California's eminent domain statutes (opens in a new tab) govern public entities, including the resolution of necessity.

What counts as public use?

Two U.S. Supreme Court decisions shape the federal answer. In Berman v. Parker (opens in a new tab), decided in 1954, the Court upheld a large-scale redevelopment taking and described court review of a legislature's public-purpose decision as narrow, though still subject to constitutional limits. In Kelo v. City of New London (opens in a new tab), decided in 2005, the Court held that a carefully considered development plan meant to produce new jobs and tax revenue could qualify as a public use under the federal Constitution. The Court did not decide that every economic-development taking is valid, and it said a taking cannot be a pretext for conferring a private benefit.

After Kelo, states adopted different amendments and statutes, so the limits are not uniform. Texas is one example. Government Code § 2206.001 (opens in a new tab) bars a governmental or private entity from taking property when the taking confers a private benefit on a particular private party, uses public use as a pretext for that benefit, is for economic development outside specified blight-related exceptions, or is not for a public use. The Texas Constitution adds that a transfer to a private entity for the primary purpose of economic development or enhanced tax revenue is excluded. The same section preserves listed uses such as utility services, common-carrier pipelines, water and wastewater projects, flood control, public buildings and parks.

Texas also adds a process step for governments. Under Government Code § 2206.053 (opens in a new tab), a governmental entity must authorize a condemnation filing by a record vote at a public meeting and identify eminent domain on the agenda before filing.

What must the condemnor do before filing?

A typical condemnation moves through the same broad stages everywhere, even though the details change. The condemnor identifies its authority, the property and the public use. It gives required notices, appraisal information and an offer. The parties negotiate. If they do not agree, the condemnor files a petition or other acquisition proceeding, the owner receives notice and may answer or object, and a court, commissioners or a jury decides compensation depending on the jurisdiction.

In Texas, Property Code §§ 21.0112 and 21.0113 (opens in a new tab) cover the landowner's bill of rights and the bona fide offer. The Attorney General's 2025 revision of the bill of rights adds specific timing, summarized below.

Each period above comes from the Texas Attorney General's Landowner's Bill of Rights (opens in a new tab) and applies in Texas only.

If the parties still cannot agree on damages, Property Code § 21.012 (opens in a new tab) requires the petition to describe the property, identify the public use, state that the parties cannot agree on damages, and state that the bill of rights and a bona fide offer were provided. The petition goes out by certified mail and first-class mail. Under § 21.014 (opens in a new tab), the judge appoints three disinterested local property owners as special commissioners, who hold a hearing and issue an award.

Federal cases work differently. Condemnation generally proceeds in federal court, and under 40 U.S.C. § 3114 the United States may file a declaration of taking stating its authority and public use, describing the property and depositing estimated compensation. A federal or federally assisted project may also trigger the Uniform Relocation Assistance Act.

How is compensation measured?

Compensation depends on the jurisdiction and on the property interest taken. In Texas, Property Code § 21.041 (opens in a new tab) calls for evidence about the value of the property condemned, injury to the owner, benefit to the remaining property, and the use of the property for the condemnation. Section 21.042 (opens in a new tab) then separates two situations:

• For an entire tract, damages equal the local market value at the time of the special commissioners' hearing.
• For part of a tract, damages reflect injury and benefit, including the effect on the value of the remaining property, which lawyers call the remainder.

Peculiar injury or benefit tied to the owner's own use and enjoyment of the parcel may be considered. General community effects, such as circuity of travel and diversion of traffic, generally may not be considered under the stated rule. The Attorney General describes adequate compensation as typically including market value and, in some cases, damage to the remaining property. The bill of rights also identifies possible moving-cost reimbursement for displaced residences or businesses, within the limits of the governing statute.

Federal law adds relocation help for federal and federally assisted projects. Under 42 U.S.C. § 4622 (opens in a new tab), an eligible displaced person may receive reasonable actual moving expenses, certain direct losses, search expenses, and specified reestablishment expenses for businesses, farms and nonprofits. Eligibility and amounts depend on the statute and its regulations, which are part of the Uniform Relocation Assistance chapter (opens in a new tab). TexasLawHelp's Spanish page on displaced tenants says federally funded displacement generally calls for at least 90 days' written notice before a move, with exceptions, and that federal relocation claims generally must be filed within 18 months after moving. Dollar amounts depend entirely on the property, so any figure has to come from an appraisal or a court.

Can the taking or the amount be challenged?

State law may allow challenges on several grounds, depending on the condemnor's statute. They can include lack of statutory authority, lack of public use, a prohibited private benefit, missed procedural steps such as the required vote, offer or notice, a defective property description, inadequate compensation, or possession taken before required payment or a bond.

In Texas, Property Code § 21.003 (opens in a new tab) allows a district court to determine authority to condemn and damages. Written objections to the special commissioners' award under § 21.018 (opens in a new tab) send the case to trial as an ordinary civil case. A condemnor may take possession after paying the award and posting a bond under § 21.021 (opens in a new tab), and § 21.062 (opens in a new tab) requires surrender of possession if a court finally decides the condemnor lacks the right to condemn.

New York shows how much deadlines differ. Under EDPL § 207 (opens in a new tab), a petition for judicial review must be filed within 30 days after publication of the condemnor's determination and findings. Review covers constitutional conformity, statutory authority, required procedures, and whether a public use, benefit or purpose will be served. A reader whose property is in a different state should look up that state's own review period promptly.

What is inverse condemnation?

Inverse condemnation starts with the owner instead of the condemnor. In a traditional case, the condemnor files a petition. In an inverse case, the owner claims that government conduct already took or damaged the property, such as a physical invasion, without a formal condemnation case. Direct condemnation normally names the property interest and public use before acquisition; inverse condemnation asks whether government conduct already caused a compensable taking.

The Texas Supreme Court addressed the idea in Self v. Texas Department of Transportation (opens in a new tab). It held that the landowners had a viable claim because a fact issue existed about whether TxDOT intentionally destroyed trees for public use, and it remanded the claim. Texas precedent recognizes that such a claim may require intentional government conduct for a public use and does not arise from mere negligence alone.

Where can you find information and professional help?

Several public and professional resources exist, and each handles a different step:

• The Texas State Law Library offers statutes and catalog resources.
• The Texas Attorney General's Landowner's Bill of Rights (opens in a new tab) explains Texas landowner rights.
• TxDOT's eminent domain materials (opens in a new tab) describe Texas authority, negotiation and condemnation procedure for highway projects.
• TexasLawHelp en español (opens in a new tab) publishes information in Spanish, using terms such as dominio eminente and asistencia para la reubicación.
• Legal-aid organizations help eligible people, subject to income and service-area rules.
• A certified real-estate appraiser can provide valuation evidence.
• A lawyer who handles condemnation, pipeline, utility or property matters can answer questions about a particular case.
• The State Bar of Texas Lawyer Referral and Information Service (opens in a new tab) matches people with attorneys or other legal resources, and its referral page has an Español option.

The State Bar's referral page says participating lawyers offer an initial consultation of up to 30 minutes for no more than $20, and it points people looking for free or reduced-fee help to TexasLawHelp.org.

Mediation is a separate settlement process, and a lawsuit that is already pending may be referred to it. Our guide to mediation in a lawsuit explains how it differs from the condemnation process described here, and our Texas eminent domain landowner rights guide goes deeper on Texas steps.

Frequently asked questions

These short answers cover points that owners often ask about after the basics.

What is the difference between eminent domain and condemnation?

Eminent domain is the power to take property for a public use with compensation. Condemnation is the legal process used to carry that power out, usually through a petition filed in court.

Does every state follow Kelo the same way?

No. Kelo set a federal floor, and states have since adopted their own constitutional and statutory limits. Texas, for example, bars takings for most economic-development purposes under Government Code § 2206.001.

Can an owner accept or reject the first offer in Texas?

Texas requires a bona fide offer before a condemnation lawsuit, and the owner may accept or reject it. If the parties cannot agree, the condemnor may file a petition that meets the requirements of Property Code § 21.012.

Can a condemnor take possession before a final judgment?

Some jurisdictions allow it after specified filings, deposits, awards, bonds or declarations of taking. In Texas, possession can follow payment of the commissioners' award and a bond under § 21.021.

What does eminent domain mean in Spanish?

Spanish speakers commonly use dominio eminente or expropiación. TexasLawHelp's Spanish materials also use toma de posesión, compensación justa and asistencia para la reubicación for related ideas.

If you want a lawyer who handles property and condemnation matters, you can find lawyers on Counselado and compare listings by city.