Missouri's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  The power to use eminent domain is inherent in the state government. From there, the state can delegate this authority to other governmental agencies as well and, in some instances, even private entities. As a result, local cities, counties, school districts, fire districts, and other governmental bodies with elected officials typically have the authority to use eminent domain. This power can also be extended to private entities such as utilities, and for private redevelopment.

• What Are the Legal Requirements for Exercising the Power?

  The Missouri and United States Constitutions place two basic restrictions on the use of eminent domain powers. First, eminent domain may only be exercised to accomplish a public purpose. Second, the government must pay the owners of the property acquired “just compensation.” The Missouri Legislature has enacted additional requirements that must be met before property can be taken by eminent domain. First, property owners must be given notice at least 60 days before a condemning entity may start eminent domain proceedings in court. Second, property owners must be provided a written offer to purchase their property and that offer must be held open for acceptance for at least 30 days.

• What Limitations or Defenses Exist?

  Once eminent domain proceedings are instituted, it is extremely difficult for property owners to fight against the taking of the property. However, in some cases, it is possible to stop or delay a taking. One reason a court may reject the use of the eminent domain power is if the condemning authority lacks a proper public use for the taking. In other cases, the taking can be stopped or delayed if the authority did not follow proper procedures, such as giving proper notices to the property owners.

• What Constitutes a Public Purpose?

  The power of eminent domain is available when needed for what many consider to be traditional projects, such as for roads, schools, parks and airports. The power has also been delegated to private companies to construct utilities, such as transmission lines, sewer lines, pipelines, and waterlines. Another legally acceptable “public purpose” involves the taking of private property that is labeled as part of a blighted area, even though the property eventually is used for redevelopment by private corporations.

• How is Just Compensation Determined?

  The United States and Missouri Constitutions require that property owners be paid “just compensation” when eminent domain is used to seize their property. Missouri courts, like most in the country, interpret this to mean that a property owner is entitled to the fair market value of the owner’s property at the time it is taken from them. If only part of a property is taken, the owner is entitled to the difference between the fair market value of the property before the part is taken and the fair market value of the property that remains after the taking.

• How Is Fair Market Value Defined?

  Missouri law provides that if an agency and a property owner cannot agree to the fair market value to be paid for an eminent domain taking, a court will appoint three commissioners who are residents of the county where the property is located to determine fair market value. In some cases, a jury trial is necessary to determine fair market value. Traditionally, fair market value was understood to mean the price that would be paid by a willing buyer purchasing from a willing seller. According to the eminent domain instruction, fair market value is defined as “the value of the property taken after considering comparable sales in the area, capitalization of income, and replacement cost less depreciation, singularly or in combination, as appropriate, and additionally considering the value of the property based upon its highest and best use, using generally accepted appraisal practices.”

• What About Recovering Damages to Remaining Property?

  Most eminent domain cases involve taking only a portion of an owner’s property. These are called “partial takings” and often involve very complicated valuation issues. The law provides that a property owner is entitled to the value of the property taken from them, plus any damages to the part that the owner keeps. The damages to the remaining property are called “consequential damages.”

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  In most eminent domain cases, Missouri law does not require the payment of attorney’s fees or experts costs incurred by the property owner. If successful after a jury trial, an owner is usually entitled to reimbursement for minor litigation costs, such deposition costs. This usually only amounts to a few hundred dollars. In cases where a property owner is successful in fighting the use of eminent domain or when a government entity decides to abandon an attempt to take property, the owner may be entitled to attorney’s fees and expert fees.