Partial Taking

Definition

Partial Taking occurs when a government entity, or occasionally a private entity with government authorization, uses its power of eminent domain to condemn and acquire only a portion of a property or specific property rights, rather than the entire property. This process necessitates the provision of just compensation to the affected property owner for the seizure of the partial interest.

Examples

Road Expansion: A city requires a strip of land from several properties to widen an existing roadway. Only a certain number of feet from the front yard of these properties are taken.
Utility Easement: A utility company may need an easement across privately-owned land to lay underground cables. The easement represents a partial interest in the land.

Frequently Asked Questions (FAQs)

What is condemnation in the context of real estate?

Condemnation is the legal process through which a government or authorized entity exercises its right of eminent domain to forcibly acquire private property for public use, with compensation provided to the owner.

What qualifies as just compensation?

Just compensation refers to the fair market value of the property or property interest at the time of the taking. It is intended to make the property owner whole, financially, as if the taking had not occurred.

How is the compensation calculated in a partial taking?

Compensation in a partial taking case generally includes the market value of the property interest taken, plus damages to the remaining property, if applicable. Damages may consider factors such as reduced utility, aesthetics, or market value of the remaining property.

Can a property owner contest a partial taking?

Yes, a property owner has the right to contest the necessity of the taking or the amount of just compensation offered. This can be accomplished through legal proceedings.

What are severance damages?

Severance damages are compensations provided to a property owner for the decrease in value of the remaining property after a partial taking. These damages are in addition to the compensation for the part that is taken.

Eminent Domain: The right of a government to take private property for public use, with just compensation.
Just Compensation: Payment required by the Fifth Amendment to the U.S. Constitution when private property is taken for public use.
Condemnation: The process of legally appropriating private property through eminent domain.
Severance Damages: Additional compensation provided for the reduction in value of the retained property after a partial taking.

Online References

Suggested Books for Further Studies

“Principles of Real Estate Practice” by Stephen Mettling, David Cusic, & Joan Sobeck
“Law of Real Estate” by Charles B. Sheppard
“Eminent Domain: A Comparative Perspective” by Iljoong Kim, Hojun Lee, & Ilya Somin

Fundamentals of Partial Taking: Real Estate Basics Quiz

### What entity usually conducts a partial taking? - [x] Government or authorized private entity - [ ] Only private citizens - [ ] Only federal agencies - [ ] Property insurance companies > **Explanation:** A partial taking is typically conducted by a government entity, or sometimes a private entity with government authorization, involving the use of eminent domain. ### What is meant by the term "just compensation"? - [ ] Payment for the original purchase of the property - [x] Fair market value of the property or interest taken - [ ] An arbitrary amount decided by the entity taking the property - [ ] Cost of relocating the property to another place > **Explanation:** Just compensation is the fair market value of the property or property interest at the time it is taken, intended to make the owner financially whole. ### How might just compensation be calculated in a partial taking? - [ ] Based on estimated future property value - [ ] Using the market value of similar properties entirely - [x] Market value of the property interest taken, plus severance damages - [ ] By owner's sentimental value of the property > **Explanation:** Compensation typically includes the market value of the part taken and may also include severance damages if the remaining property has been devalued. ### Can a property owner do anything if they disagree with the compensation offered? - [ ] They must accept the amount given without recourse. - [ ] They can sell the entire property instead. - [x] They can contest the necessity or compensation amount through legal proceedings. - [ ] They can refuse access to the property indefinitely. > **Explanation:** Property owners can contest either the necessity of the taking or the compensation offered via legal proceedings. ### What are severance damages? - [ ] Payments to cover emotional distress caused by the taking - [ ] Only the fair market value of the property taken - [x] Compensation for decreased value of the remaining property after partial taking - [ ] Replacement cost for identical property elsewhere > **Explanation:** Severance damages compensate for the reduction in value of the portion of the property that remains in the owner’s possession after a partial taking. ### What type of property acquisition does not constitute a partial taking? - [ ] Government seizure for road development - [x] Purchase of an entire property by a private buyer - [ ] Easement acquisition for utility lines - [ ] Strip land acquisition for public sidewalk expansion > **Explanation:** Partial taking deals with acquiring only part of the property or some property rights. Purchasing an entire property by a private buyer is not a partial taking. ### Which amendment to the U.S. Constitution requires just compensation? - [ ] First Amendment - [ ] Second Amendment - [ ] Fourth Amendment - [x] Fifth Amendment > **Explanation:** The Fifth Amendment to the U.S. Constitution requires just compensation when private property is taken for public use. ### How does a partial taking differ from a full condemnation? - [ ] There is actually no difference between the two. - [ ] One involves acquisition by private citizens only. - [x] Partial taking involves acquiring only part of a property, whereas full condemnation takes the entire property. - [ ] Full condemnation does not require any compensation. > **Explanation:** Partial taking involves condemning only a part of the property, while full condemnation involves taking the entire property. ### What specific term describes the process of legally appropriating private property? - [x] Condemnation - [ ] Adjudication - [ ] Expropriation - [ ] Securing title > **Explanation:** Condemnation is the process of legally appropriate private property through eminent domain. ### Why might a government prefer partial taking over full condemnation? - [x] To minimize costs and impact on property owners - [ ] To avoid litigation entirely - [ ] To reduce administrative paperwork - [ ] To increase property values in the area > **Explanation:** Partial taking minimizes costs and reduces the impact on property owners compared to full condemnation, making it often a preferred method.

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