COVID-19 and the Declaration of Taking Act: The Federal Government’s ‘Take Now, Pay Later’ Eminent Domain Power

When the federal government takes property through its eminent domain power, the Constitution requires that it pay just compensation. The Constitution, however, does not require the government to pay before it takes possession of the property. For example, the Declaration of Taking Act (DTA) allows the government to take title to, and possession of, a property at the very beginning of a proceeding, without a hearing. As we hear new information about government action to increase the number of hospital beds and other resources in anticipation of increased COVID-19 cases, the DTA is a powerful statute that may allow the federal government to obtain title and the right to possess property prior to paying just compensation.

Just Compensation and the Declaration of Taking Act

The government may invoke the DTA at any time prior to the court’s judgment on just compensation in a condemnation case. To rely on the DTA, the government must file a “declaration of taking” that provides, among other things, information about the property, the government’s authority to condemn the property and an estimate of the just compensation owed to the property owner. Simultaneously, the federal government deposits an amount of money with the court matching the estimate stated in the declaration. Once the government files the declaration and deposits the money, the government obtains title and the right to possess the property. The owner may petition the court to pay out the estimate deposited with the court.

The case then proceeds to determine just compensation like a normal condemnation action. Once final compensation is determined, the government must pay any deficiency between the estimate and the final number, with interest, as provided by the DTA. Once the government files a declaration of taking, it commits itself to paying just compensation and cannot abandon the condemnation. Under the DTA, once the Attorney General believes that the government has proper title to the property, the government may demolish the existing structure or otherwise start developing the property.

Key Takeaways for Property Owners

If the federal government takes possession of your property under the DTA, it’s important to understand your rights and the actions required by the government. First, the government is required to file a condemnation action to invoke the DTA. It may file its declaration of taking at the same time as it files the petition to condemn with the court, but the DTA does not allow the government to simply occupy a property then file a condemnation claim and a declaration of taking. Second, while the DTA does not guarantee the owner will receive just compensation prior to the government taking possession of the property, the owner is entitled to obtain just compensation at the end of the proceeding. If any government entity reaches out about acquiring or using your property, it is important to contact experienced eminent domain counsel immediately. Attorneys with experience in this area can help protect your interests while we all try to protect each other from the spread of COVID-19.