Illinois Eminent Domain Law
Property Owner's Guide to Eminent Domain in Illinois
If you are faced with losing your property or business to eminent domain, you should know your rights. This guide is designed to give you a general understanding of Illinois' eminent domain law and procedures. This guide contains information about general eminent domain issues. It does not constitute legal advice on a particular situation, and may not be relied upon for that purpose. It is not a substitute for hiring an experienced lawyer to protect your rights. Laws and the application of the law can change at any time.
Eminent domain and condemnation
Eminent domain is also known as condemnation. It is the process in which the government or utility has the legal power to acquire private property for a public use. Term "condemnation" is also used to describe the situation where a building is unsafe and the local government "condemns" the building in order to demolish it. That is not the situation with eminent domain where a property is condemned for simply being in the way of the public project.
Use of eminent domain powers
Most government agencies, from IDOT to cities to utilities have the power to use eminent domain to fulfill their responsibilities. Eminent domain powers can also be used in the name of removing blight where the property is placed in the hands of private developers.
Are there limitations on eminent domain?
Yes. Under the Illinois and the U.S. Constitutions, private property may be condemned so long as the taking is for a public purpose and the property owner is paid just compensation.
Defining public purpose
"The phrase "public purpose" is given broad meaning under the law. Traditionally a public project, like parks, roads or government buildings, are examples of public purposes that permit the use of eminent domain. However, the public purpose has been expanded to include private commercial uses that are intended to remove blight. This expanded meaning of public purpose has been controversial.
Explaining just compensation
"The words "just compensation" have been interpreted to require that property owners are to be indemnified, or made whole, for his or her loss that occurs when eminent domain powers are used. This is often measured by paying the "fair market value" for the property taken. If only a portion of a property is acquired, the owner may also be entitled to consequential damages to the property that remains. The owner has the right to be paid for the "highest and best use of the property," as opposed to the existing use.
How the condemnation process starts
Often, property owners will be aware for years that their property is threatened with eminent domain. However the first legal step to start the condemnation process is a written offer sent by the government agency to the property owner. The written offer must be sent at least 60 days before court proceedings are started.
Rejecting the government's offer
If a property owner does not want to accept the offer for their property, he or she can reject it.
Court proceedings start with the filing of a complaint
"If the government and property owner cannot agree to a price, then the government will file a "complaint" with the court seeking permission to condemn the property. The owner will be served with a summons, which is a notice of the legal action. The owner must file a counterclaim if they believe the property that remains is also damaged by the taking.
Who determines how much I'm paid for my property?
In some cases, the first court hearing is a "Quick Take" hearing. Quick Take proceedings require prior approval by the Illinois Legislature. In a Quick Take hearing, very soon after the complaint is file, the Court (judge) will set a hearing for it to listen to evidence of value, or damages, to which the owner is entitled. The Court will afterwards enter an order setting the amount of damages to be paid to the owner. If one of the parties disagrees with the Court's statement of damages, they can request a jury trial to re-assess the damages. As an alternative to a "Quick Take" proceeding, in a standard taking, the Court will set a date for a trial where the issue of the power to take and the issue of damages will be heard by a jury.
How am I paid for my property?
After the Quick Take order by the court, the government usually deposits the amount of the award with the court, at which time the government takes title to the property and has the right to use it for the purposes stated in the petition. The property owner would then obtain these funds from the court, subject to payment of liens, mortgages, taxes or judgments. If a tenant is renting at the time of condemnation, he or she may be entitled to a portion of the Quick Take Award, depending upon the terms of the lease.
The owner or tenant may be entitled to relocation benefits from the government. Such benefits often include money for moving and assistance for locating a new place. If a business is involved, benefits may also include the cost of reestablishing the business at a new site.
The only issue before the jury is how much compensation the owner deserves as a result of the condemnation. An owner is entitled to the value of what is taken together with any damages to the remaining property if the condemnation removes only a part of the property. The jury is not told of the Quick Take Award. Usually, experts such as real estate appraisers, will testify at the trial.
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