Imagine that the local government where you live is invoking eminent domain rights concerning your dear home to build a road or park or let a private developer do as they will (Kelo v. New London in 2005).

To make matters worse, there has been no offer to pay you for your home’s fair market and sales value. To add further insult to injury, there is no compensation offer. It feels like you are being given a flippant 60-day notice as if you are a tenant with no ownership rights. Yet, this is where you have saved to buy, likely have financial equity accruing, have added personal touches to make it a warm and cozy home, and perhaps had hoped to pass this quaint abode to your bambinos.

Such abrupt land seizures, even with supposed “just” compensation (our Fifth Amendment right), are often tough and emotionally draining. Still, they seem particularly egregious when there is a low (or no) monetary offer because “just compensation” historically does not have to reflect the “fair market value.”  

Sadly, for some today (like these homeowners in Mississippi, Georgia, Georgia (again!), and South Carolina, to name just a few), this is not simply an exercise in futile imagination or a history lesson. (Speaking of history, did you know that between 1949 and 1973, over one million people reportedly—some still living—were displaced from their homes due to unfair eminent domain seizures?) 

Instead, it is a nightmare that has taken media awareness and ongoing community pushback to stop.

Can eminent domain seizures ever be fair?

Just. Equitable. Impartial. Unbiased. Unprejudiced. Nonpartisan. Nondiscriminatory. Objective. Neutral.

Those are all synonyms for “fair,” but in housing, whether homeownership or leasing, I have noticed that many have unspoken expectations that expound on those words.

To have the quintessential “meeting of the minds” necessary for smooth transactions, there must be a shared understanding of what “fair” means beyond legalese or rote quoting of acts, amendments, and protected classes to support and actualize day-to-day operations.

As a quick aside, there are seven components of fairness. Three of these typically necessitate collective action (substantive, retributive, and restorative), but four (distributive, interactional, informational, and procedural) are within the control of everyday practitioners. Of the seven, let’s examine procedural fairness, which may seem lacking to targeted homeowners facing displacement via eminent domain takings.

Prioritizing procedural fairness

Procedural fairness, or procedural justice, refers to the fairness of the processes and methods used to make decisions and resolve disputes. 

Key elements of procedural fairness include: 

Transparency: The processes and criteria used to make decisions should be open and transparent to all parties involved in the real estate deal. This includes providing information about how decisions are made and on what basis. In short, homeowners should not be the last to know their property is being seized like this instance in New Jersey.

Consistency: Procedures should be applied consistently across similar cases and situations. This helps ensure that decisions are not arbitrary and that similar circumstances are treated similarly. Consistency becomes especially important for our low-income seniors.

Impartiality: Decision makers should be neutral and unbiased. They should not have a personal interest in the outcome. They should not show favoritism or prejudice toward any party involved. This is a tough one among local governments.

Right to be heard: Individuals affected by decisions should be able to present their views and evidence. This often includes the right to file a complaint with the company management. This is an internal policy improvement that many can make today! 

Right to legal representation: People have the right to seek legal advice during decision-making (it may be no fee through H.U.D. or a local fair housing agency) and should not be forced to sign anything until consulting with such counsel.

Reasoned decisions: Decisions should be based on evidence, and relevant information and supporting documents should be shared with the aggrieved homeowner. The reasons for decisions should be clearly articulated, explaining how conclusions were reached and why specific actions were taken. For homeowners who have been told (and believe) that homeownership is their key to the American dream, eminent domain seizures are discombobulating, like the rug where you stand has been pulled from under you. Providing a reasoned decision may help a homeowner move through the stages of grief due to being displaced and lessen the toil it takes (c.f. Rev. Michael Haynes attributed his mother’s heart attack to the stress of abrupt, cruel eminent domain).

Review and appeal: Mechanisms should exist for reviewing and appealing decisions. This would allow for the correction of errors and ensure accountability in the decision-making process.

It is jarring to be forced to sell your home when that was not the plan, especially if you are not being compensated in a manner that makes the hassle worth it. Thankfully, reform is starting to happen in these areas through lawmaking discussions like this (which recommends better appraisal transparency) and this (which would require that property owners are compensated more than fair market value, again, due to the hassle). 

But why wait for collective, legislative reform? These proactive procedures can be made internal policy by every housing practitioner (especially you, developers). Plus, here is a grassroots guide to advocating for our community members. You never know if the next project may add your home to the chopping block.

This column does not necessarily reflect the opinion of HousingWire’s editorial department and its owners.

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