California eminent domain laws can be found in Title 7 of Code of Civil Procedure. Eminent domain is the power of local, state or federal government agencies to take private property for public use so long as the government pays just compensation. Pursuant to Cal Code Civ Proc § 1230.030 private property shall be taken by eminent domain only when there is a public use. Examples of “public uses” for which the government might exercise its power of eminent domain include such things as schools, roads, libraries, police stations, fire stations and similar public uses.
Pursuant to Cal Code Civ Proc § 1245.220 the government agency must adopt a formal resolution, also known as resolution of necessity to acquire the property before commencing an eminent domain proceeding in court[i]. The resolution of necessity must be adopted at a public hearing. It must be adopted before the condemning agency can commence an eminent domain action in court.
In order to adopt a resolution of necessity, the government agency must find (1) that the project for which the property is to be acquired is necessary; (2) that the property is necessary for the public project; (3) that the project is located in such a manner as to offer the greatest public benefit with the least private detriment; and (4) that an offer to purchase the property has been made.
Pursuant to Cal Gov Code § 7267, government agencies shall obtain an appraisal and make an offer to the owner of record of real property to be acquired before the agency may commence court proceedings. The offer generally must be in an amount no less than the appraisal approved by the agency.
A property owner is not required to accept the condemning agency’s offer. Instead, the property owner may make a counter-offer, or may assert a higher value for his or her property once the eminent domain action is filed in court. The court directs the government agency to deposit the probable amount of just compensation. Thereafter, appraisers determine the fair market value of the subject property. The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by the seller, who would be willing to sell under no particular or urgent necessity of doing so, nor obliged to sell, and a buyer, being ready, willing and able to buy under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.
If settlement cannot be reached between the owner and the government agency, trial regarding the eminent domain action takes place before a jury who determines fair market value of the subject property. When the judgment is entered, the government pays compensation within 30 days following entry of judgment and the title to subject property is transferred to the government by the court.
Pursuant to Cal Code Civ Proc § 1255.410, the condemning agency may ask the court for possession of the property even before judgment has been entered in the eminent domain proceeding. The court may only do so, however, if the condemning agency has first deposited into the County or State Treasury the amount which it determines as the probable compensation to be paid for the property. Once the condemning agency deposits the amount of probable compensation, the property owner or tenant may apply to the court to withdraw that portion of the deposit which represents the owner’s probable amount of compensation.
[i] Cal Code Civ Proc § 1245.230.