When one hears “eminent domain” or “condemnation,” you might envision a governmental agency or utility coming in and acquiring the entirety of a piece of property and leaving nothing behind. However, often times, condemnation does not require the entire property, but only a portion or rights to use a portion a specific way. So, what is the difference between the various terms of fee simple, an easement, full take, and part take?
If someone owns land in “fee simple,” they typically have complete and total ownership of the piece of land. This is the type of ownership that one typically thinks of when you think about owning a home or other piece of property. So, when land is being acquired in “fee simple” by a condemning entity, it means that the agency is acquiring all rights associated with that piece of property and the former property owner will have no rights left to the property at the end of the eminent domain action.
An easement is a non-possessory interest in a portion of real property that grants the easement holder permission to use the land in a certain way. The underlying ownership still remains with the property owner, but the use of the property by the owner is subject to the rights granted under the easement.
In condemnation, often only a type of easement is needed, not the whole property. This could be an easement to run utility lines across a property or an easement for access. Moreover, easements can be temporary or permanent (some existing only for a specific time period and then expire), and exclusive or non-exclusive (some allowing the underlying property owner to also use the property at the same time). The rights being acquired and the related impacts can be unique to each easement.
Full Take v. Part Take
Finally, in a condemnation action, you may hear the terms full take v. part take. Typically, a full take means that a condemning entity is acquiring the entirety of a property and acquiring the fee simple in that property (i.e., acquiring all rights associated with the property and the original owner will cease to have any interest in the property). On the other hand, a part take means the condemning entity is acquiring less than full rights to the property. Maybe the entity is acquiring property in fee simple, but only needs a corner of the property to do this, such as often is the case for widening a road or railway corridor. Or, the entity may be acquiring easements on the property, but the easements only impact a “part” of the property, not the whole.
Whenever there is a part take, this opens the door to the possibility of the property owner being compensated for severance damages, or damages to the remainder of the property as a result of the part taken.
There are a variety of ways interests in property can be acquired and held. Understanding the types of property ownership and types of acquisitions is crucial for both property owners and condemning entities involved in eminent domain.
Jillian Friess Leivas focuses her practice on eminent domain laws and regulations. She has experience with the right-of-way process, from precondemnation planning activities through to acquisition. She prepares and argues ...
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