Massachusetts laws
Massachusetts Constitution, Part 1, Article 10 The owner of private property taken for a public purpose shall receive reasonable compensation
MGL c. 79 Eminent domain (primary eminent domain law)
MGL c. 79A Relocation assistance
MGL c. 80A Eminent domain takings and betterment assessments by judicial proceedings
MGL c. 81 State highways (includes sections on acquisition of land by eminent domain)
Note: There are other state laws authorizing political subdivisions to exercise the power of eminent domain. For lists of specific grants of legislative authority, see Crocker’s notes on common forms, 12th ed., MCLE, chapter 28.
Massachusetts regulations
301 CMR 51 Land acquisition (Exec. Office of Energy and Environmental Affairs)
- 301 CMR 51.03 Real property can be acquired by eminent domain for use by an EEA agency
310 CMR 36 Massachusetts water resources management program (Dept. of Environmental Protection)
- 310 CMR 36.40 (5)(a) During a water supply emergency, a public water supplier can submit a plan to DEP that includes taking land by eminent domain under MGL c. 79 for the time necessary to use the water
310 CMR 40 Massachusetts contingency plan (Dept. of Environmental Protection)
- 310 CMR 40.0101 (1)(p) The Department may acquire real property by eminent domain to carry out the purposes of MGL c. 21E (Mass. Oil and Hazardous Material Release Prevention and Response Act)
760 CMR 25 Securing approval of projects under MGL c. 121A in cities and towns outside of Boston (Dept. of Housing and Community Development)
- 760 CMR 25.05 Procedure for obtaining approval of the use of eminent domain by a MGL c. 121A entity
760 CMR 27 Relocation assistance (Dept. of Housing and Community Development)
Relocation assistance applies to eminent domain takings by any public agency if it results in the displacement of persons or businesses.
930 CMR 6 Exemptions unrelated to gifts (State Ethics Commission)
- 930 CMR 6.15 Exemption of eminent domain settlements
990 CMR 15 Eminent domain (Hazardous Waste Facility Site Safety Council)
Exercising eminent domain authority pursuant to MGL c. 21D (Mass. Hazardous Waste Facility Siting Act).
Federal laws
United States Constitution, Amendment V
"No person shall. . . be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation."
40 USC §§ 3111-3118 Acquisition of real estate by the federal government for public purposes
42 USC c. 61 Relocation assistance for owners of real property acquired for federal or federally-assisted projects
Federal regulations
49 CFR 24 Department of Transportation - Relocation assistance
Selected cases
Abuzahra v. City of Cambridge, 486 Mass. 818 (2021)
M.G.L. c. 79 allows a property owner to accept a partial payment, known as a pro tanto payment, from the government and to simultaneously challenge the validity of the real property taking.
Abuzahra v. City of Cambridge, 101 Mass. App. Ct. 267 (2022)
The court held that eminent domain is a legislative act and "protected by legislative immunity and the associated legislative privilege." Although it was "determined that legislative privilege covers communications between city councillors regarding whether and why the plaintiff's property should be taken," the case was returned to the lower court to decide if other emails withheld by the city were protected by legislative privilege.
Byfield v. City of Newton, 247 Mass. 46 (1923)
The requirements of governing statutes must be strictly observed for eminent domain takings.
Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531 (1988)
For eminent domain to be lawful, the taking has to be for a public purpose.
Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 361 (1978)
"The measure of damages is the fair market value of the property at the time of the taking. Fair market value is defined as the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market."
Kelo v. City of New London, 545 U.S. 469 (2005)
The use of eminent domain to transfer land from one private owner to another private owner to further economic development does not violate the Takings Clause of the Fifth Amendment.
Skyline Homes v. Commonwealth, 362 Mass. 684 (1972)
Just compensation can include the potential uses of land even if a use was legally prohibited at the time of taking as long as there is a reasonable prospect that the prohibition would be removed in the future.
Smiley First LLC v. Department of Transportation, 492 Mass. 103 (2022)
"[A]n easement taken by eminent domain must be construed in light of the language of the order of taking and the circumstances surrounding the taking. The parties’ intent is inapplicable to takings by eminent domain."
Web sources
"After 'Kelo': Political rhetoric and policy responses", Lincoln Institute of Land Policy, 2010.
Massachusetts Declaration of Rights – Article 10: Due process, Massachusetts Law Updates Blog Post (January 2019).
Includes precedents, following law, and quotations.
MassDOT right of way, Mass. Highway Division.
"Massachusetts' transportation system is dependent on an extensive network of highways, bridges, and streets. As we make changes and improvements to our transportation system, it is sometimes necessary to acquire land from private property owners." Includes:
- Right of way acquisition and your property
A guide about the process of acquiring private land for public transportation projects - Right of way manual (2018)
Details the policies and procedures followed by the MassDOT Right of Way Bureau
Uniform appraisal standards for federal land acquisitions, Interagency Land Acquisition Conference, 2016
Commonly known as the "Yellow Book," these standards are used for "the valuation of real estate in federal acquisitions."
Print sources
Crocker’s notes on common forms, 12th ed., MCLE, chapter 28. “This chapter reviews the substantive law of eminent domain in Massachusetts and procedures for a proper eminent domain taking.”
Damages, interest and attorney fees in Massachusetts litigation, 6th ed., MCLE, chapter 9.
Eminent domain litigation and dispute resolution: leading lawyers on examining condemnation and compensation issues in a post-Kelo environment, Aspatore, [2014].
How to maximize compensation in eminent domain, MCLE, 2020.
LexisNexis practice guide: Massachusetts real estate litigation, annual edition, chapter 6.
Massachusetts municipal law, 3rd ed. MCLE, chapter 30.
Municipal law and practice, 5th ed. (Mass. Practice Series v. 18B) West, 2006 with supplement, chapter 28.
Nichols’ the law of eminent domain, 3rd ed., Matthew Bender, loose-leaf. Also available in eBook format with a library card.
Prima facie case: proof and defense, 5th ed. (Mass. practice series v.17A), West, 2005 with supplement, chapter 50.
Real estate law with forms, (Mass. practice series v.28A), West, annual edition, chapter 18.
Real estate title practice in Massachusetts, 4th ed., MCLE, loose-leaf, chapter 12.
Contact for Massachusetts law about eminent domain
Online
| Last updated: | September 10, 2024 |
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