Definition
Partial Taking is a real estate term that refers to the process where a government entity or authority acquires only a portion of a property or some specific property rights through condemnation, often under the power of eminent domain. Rather than taking the whole property, partial taking involves the acquisition of a segment, which might be necessary for public use such as road expansion, utility easements, or other infrastructure projects.
Examples
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Highway Expansion: A state government needs a 20-foot-wide strip of land from various properties along a highway to add an additional lane. This strip of land is taken from the property owners through partial taking.
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Eminent Domain for Utilities: A utility company requires access across multiple properties to install a new public transit system. Instead of acquiring entire properties, they petition for a partial taking to secure only the necessary right-of-way for the transit tracks.
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Partial Easement: A city implements a partial taking to obtain a portion of private farmland to install a public sewer line across the residents.
Frequently Asked Questions
What is condemnation in real estate?
Condemnation is the legal process by which a government or agency utilizes eminent domain to seize private property for public use, with compensation provided to the property owner.
What rights do property owners have in a partial taking?
Property owners are entitled to just compensation, which is typically assessed based on the market value of the part of the property taken and any devaluation to the remaining property.
Can property owners contest a partial taking?
Yes, property owners can contest a partial taking by disputing the necessity of the acquisition or the amount of compensation offered. Legal proceedings may involve proving that the proposed public use is not valid or that the compensation is insufficient.
How is compensation for partial taking determined?
Compensation is determined based on the fair market value of the portion taken and any resulting damages or devaluation to the remaining property. Appraisers and independent experts may assess this value.
Does partial taking affect the overall value of the remaining property?
Yes, it can affect the overall value negatively or positively, depending on the nature and location of the partial taking. Severance damages or benefits need to be evaluated as part of the compensation.
- Eminent Domain: The right of a government to take private property for public use, with fair compensation.
- Condemnation: The process through which eminent domain is exercised to acquire private property.
- Just Compensation: The fair market value paid to a property owner when land is acquired through eminent domain procedures.
- Severance Damages: Compensation awarded for the decrease in value of the remaining property after a partial taking.
- Easement: A non-possessory right to use a portion of another person’s land for a specific purpose.
Online Resources
References
- “Eminent Domain and Condemnation Law.” .gov Website.
- “U.S. Constitution, Fifth Amendment.” Online Text.
Suggested Books for Further Studies
- “Eminent Domain: A Handbook of Condemnation Law” by Julius L. Sackman
- This book provides comprehensive coverage of the principles and legal precedents of eminent domain and condemnation.
- “The Law of Eminent Domain: Fifty-State Survey” by Cecilia Dubrovsky
- A detailed examination of how eminent domain is applied across various states in the U.S. offering comparative legal insights.
- “Property Rights and Eminent Domain” by Ellen Frankel Paul
- A philosophical and legal perspective on property rights and the laws surrounding eminent domain.
Real Estate Basics: Partial Taking Fundamentals Quiz
### What is partial taking?
- [x] Acquisition of a portion of a property or specific property rights through condemnation.
- [ ] Taking of the entire property by a private company.
- [ ] Unauthorized use of a property by the government.
- [ ] Selling a portion of property to private buyers.
> **Explanation:** Partial taking refers to the acquisition, typically by a government entity using eminent domain, of only a part of a property or certain property rights.
### Under eminent domain, who compensates the property owner during partial taking?
- [ ] Local real estate agents
- [ ] Property management companies
- [x] The government or public authority conducting the taking
- [ ] The property's next-door neighbor
> **Explanation:** The government or public authority conducting the taking provides just compensation to the property owner for the portion of property acquired through eminent domain.
### Which term relates to the reduction in value of the remaining property after a partial taking?
- [ ] Enhancement Damages
- [x] Severance Damages
- [ ] Appreciation Costs
- [ ] Whole Property Value
> **Explanation:** Severance damages refer to the compensation for any decrease in the value of the remaining property after a partial taking has been conducted.
### Why might a government pursue a partial taking rather than full property acquisition?
- [ ] To avoid compensating the property owner
- [ ] To enable commercial development without compensation
- [x] To only take the necessary portion required for public use, minimizing the impact on the property owner
- [ ] To increase taxation on the remaining property
> **Explanation:** The government might pursue a partial taking to acquire only the portion necessary for public use, which reduces overall project costs and minimizes the disturbance to the property owner.
### How is "just compensation" determined in a partial taking?
- [ ] Through a bidding process
- [x] Based on fair market value of the taken portion and any resulting devaluation to the remaining property
- [ ] By the property owner’s solicitor
- [ ] By the individual's assessment
> **Explanation:** Just compensation is determined based on the fair market value of the portion taken and any consequential devaluation of the remaining property, usually assessed by professional appraisers.
### What type of property rights might be acquired in a partial taking?
- [x] Easements for utilities or right-of-way
- [ ] Full ownership of the property
- [ ] Shares in property management companies
- [ ] Leasehold interests in unrelated properties
> **Explanation:** In a partial taking, easements for utilities or right-of-way are examples of specific property rights that might be acquired without taking full ownership of the property.
### Can property owners contest the amount of compensation offered in a partial taking?
- [x] Yes, they can contest through legal proceedings.
- [ ] No, the compensation amount set by the government is final.
- [ ] Only if they have insurance
- [ ] Only if the partial taking affects more than 50% of their property
> **Explanation:** Property owners can contest the amount of compensation through legal proceedings if they believe it does not represent the fair market value or is otherwise insufficient.
### What is one common use of property obtained through partial taking?
- [ ] Private residential development
- [x] Public infrastructure projects like roads or utilities
- [ ] Commercial farming
- [ ] Unregulated industrial expansion
> **Explanation:** A common use of property acquired through partial taking is for public infrastructure projects including roads, utilities, or public transportation systems.
### If a partial taking is insufficient for the project needs, what might the government do?
- [ ] Cancel the project
- [ ] Demand more property without additional compensation
- [x] Initiate another partial taking or consider full acquisition
- [ ] Outsource the project to a private company
> **Explanation:** If the initial partial taking is deemed insufficient, the government might initiate additional partial takings or consider acquiring the entire property needed for the public project.
### What happens if a property owner refuses the compensation offered for a partial taking?
- [ ] They lose their property without compensation.
- [ ] The government seizes the rest of the property.
- [x] The dispute could be resolved in a court where judges determine the appropriate compensation.
- [ ] They are required to move immediately
> **Explanation:** A property owner’s refusal of the offered compensation usually leads to a legal dispute resolved in court, where judges will determine the fair and just compensation for the partial taking.
