Massachusetts law about eminent domain

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

Note: There are other state laws authorizing political subdivisions to exercise the power of eminent domain.

Massachusetts regulations

301 CMR 51.03 Executive Office of Energy and Environmental Affairs- Real property can be acquired by eminent domain for use by an EEA agency.

310 CMR 36.40 (5)(a) Department of Environmental Protection- During a water supply emergency, a public water supplier can submit a plan to DEP that includes taking land by eminent domain under M.G.L. c. 79 for the time necessary to use the water.

310 CMR 40.0101 (1)(p) Department of Environmental Protection- The Department may acquire real property by eminent domain to carry out the purposes of M.G.L. c.21E.

760 CMR 25.05 Department of  Housing and Community Development - Procedure for obtaining approval of the use of eminent domain by a M.G.L. c.121A entity  

760 CMR 27 Department 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 6.15 State Ethics Commission – Exemption of eminent domain settlements 

990 CMR 15 Hazardous Waste Facility Site Safety Council –Exercising eminent domain authority pursuant to M.G.L. c.21D.

Federal laws

United States Constitution, Amendment V  Private owners of real property taken by the government are entitled to just compensation.

40 USC §§3113-3118 Acquisition of real estate by the federal government for public purposes.

42 USC §§4601-4655 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 case law

Abuzahra v. City of Cambridge, 486 Mass. 818 (2021)
M.G.L. c. 79 allows a property owner to accept a partial 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.”

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. 

Web sources

Uniform appraisal standards for federal land acquisitions
Commonly known as the “Yellow Book,” these standards are used for “the valuation of real estate in federal acquisitions.”

Eminent domain brochure, Mass. Department of Transportation, Highway Division, 2011
"The purpose of this brochure is to explain the eminent domain land acquisition process, and answer frequently asked questions about the process."

Print sources

Crocker’s notes on common forms, 11th ed., MCLE,  loose-leaf, chapter 28.

Damages, interest and attorney fees, 4^th ed., MCLE, loose-leaf, chapter 9.

LexisNexis practice guide: Massachusetts real estate litigation, annual edition, chapter 6.

Massachusetts municipal law, 2d ed. MCLE,  loose-leaf, 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.

Prima facie case: proof and defense, 5^th 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.

Last updated:	September 23, 2022