Study Guide for Eminent Domain based from Duka

22 Feb, 2026

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EMINENT DOMAIN (POWER OF EXPROPRIATION)

Standalone Primer | Constitutional Law 2

Based on Duka, Constitutional Law 2 (2025)

I. OVERVIEW: WHAT IS EMINENT DOMAIN?

Imagine the government needs your land to build a road, a school, or a public utility. You don't want to sell. The government cannot simply seize it — but neither can your refusal stop an essential public project. The solution the law provides is eminent domain: the government can take your property, but it must pay you for it.

The working definition: Eminent domain is the inherent power of the State to take, or to authorize the taking of, private property for a public use, provided the owner is paid just compensation. (Duka)

It is also called expropriation (the more common Philippine term) or, less frequently, condemnation (more common in American usage).

The constitutional basis is Article III, Section 9 of the 1987 Constitution:

"Private property shall not be taken for public use without just compensation."

Critically, this provision is not a grant of the power — eminent domain already exists by virtue of sovereignty. The provision is a limitation and a safeguard: it tells the government how it must exercise the power (publicly and with compensation) and implies the courts may review whether it was properly done.

II. NATURE AND CHARACTERISTICS

A. It is inherent in sovereignty.

Like police power and taxation, eminent domain does not need a constitutional provision to exist. It "need not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject are meant more to regulate, rather than to grant, the exercise of the power." (Duka) The moment the State comes into being, it possesses this power.

B. It is necessarily in derogation of private rights.

Eminent domain "greatly affects a landowner's right to private property which is a constitutionally protected right necessary for the preservation and enhancement of personal dignity and is intimately connected with the rights to life and liberty." For this reason, painstaking scrutiny is required whenever it is exercised, whether directly by the State or through authorized agents. (Republic v. Gingoyon, G.R. No. 166429, December 19, 2005; Lagcao v. Labra, G.R. No. 155746, October 13, 2004) (Duka)

C. It operates through a forced purchase, not a gift or seizure.

Eminent domain is described as "the highest and most exact idea of property remaining in the government" that may be acquired through a method "in the nature of a forced purchase by the State." (Duka) It is not a gift to the State, and it is not a pure seizure — it is a compulsory sale at a price the courts determine to be fair.

D. Just compensation is the constitutional price tag.

Unlike police power (no compensation) and taxation (compensation through public services and improvements), eminent domain requires full and fair monetary compensation to the private owner. This is the essential counterweight to the forced nature of the taking.

E. The constitutional provision is strictly construed against the expropriator.

Because eminent domain derogates private rights, it must be "strictly construed" — any authority to expropriate must be clearly established. "No species of property is held by individuals with greater tenacity, and none is guarded by the Constitution and laws more sedulously, than the right to the freehold." (Cruz) Doubts are resolved in favor of the property owner.

III. WHO MAY EXERCISE THE POWER?

A. Primary seat: The National Legislature (Congress)

Eminent domain is "essentially lodged in the legislature." (Duka) Congress has plenary authority to determine when, for what purpose, and under what conditions private property may be expropriated.

B. Delegation — others may exercise it upon valid grant

Upon valid delegation by Congress, the power may also be exercised by:

1. The President
2. Lawmaking bodies of Local Government Units (LGUs)
3. Public corporations (e.g., NHA, Land Authority)
4. Quasi-public corporations (e.g., NPC, PLDT, Meralco — private entities serving essential public needs)

⚠︎ Key distinction from police power: Eminent domain, uniquely among the three inherent powers, may be delegated to and exercised by quasi-private corporations serving public needs. Police power and taxation are exercised only by government.

C. LGUs have no inherent power of eminent domain.

LGUs exercise eminent domain only because Congress delegated it through Section 19 of the Local Government Code (R.A. 7160). Strictly speaking, the power delegated to an LGU is not eminent but "inferior" domain — it must conform to the limits set by the delegation. The national legislature is the principal; the LGU cannot go against or modify the principal's will. (Beluso v. Municipality of Panay, G.R. No. 153974, August 7, 2006; Lagcao v. Labra) (Duka)

IV. REQUISITES FOR VALID EXERCISE OF EMINENT DOMAIN

For any entity exercising eminent domain, the following must concur:

1. Necessity

The taking must serve a genuine public need. When exercised by Congress directly, the determination of necessity is generally a political question — courts defer to legislative judgment. When exercised by a delegate (President, LGU, etc.), necessity becomes a justiciable question — courts may review and set it aside. (Beluso v. Municipality of Panay) (Duka)

2. Private Property

The subject matter must be private property. All private property capable of ownership may be expropriated — land, buildings, movables, services (e.g., PLDT's telephone lines were held subject to expropriation in Republic v. PLDT, G.R. No. L-18841), and even easements. The property must be wholesome — not noxious — because it is intended to be devoted to public use, not destroyed (that is police power). (Duka)

3. Taking

Expropriation normally involves transfer of title and possession, but taking in the legal sense is broader. There is "taking" under eminent domain in any of these situations:

• The owner is actually deprived or dispossessed of his property;
• There is a practical destruction or material impairment of the value of his property;
• He is deprived of the ordinary use of his property; or
• He is deprived of jurisdiction, supervision and control of his property. (Municipality of Carlota v. NAWASA, G.R. No. L-20232, September 30, 1964) (Duka)

The Five Requisites of "Taking" (Republic v. Castellvi, G.R. No. L-20620, August 15, 1974):

1. The expropriator must enter a private property;
2. The entry must be for more than a momentary period;
3. The entry must be under a warrant or color of legal authority;
4. The property must be devoted to public use or otherwise informally appropriated or injuriously affected; and
5. The utilization of the property must be in such a way as to oust the owner and deprive him of all beneficial enjoyment thereof.

(Duka)

Two Kinds of Taking:

• Possessory taking — the government confiscates or physically occupies property.
• Regulatory taking — the government's regulation leaves no reasonable economically viable use of the property. (Duka)

Note on easements: An easement of right-of-way imposed on private property through expropriation IS a taking under eminent domain that requires just compensation, even if no title passes. (National Power Corporation v. Spouses Asoque, G.R. No. 172507, September 14, 2016) (Duka)

4. Public Use

Public use is the purpose that justifies taking private property. It has been broadly interpreted — it is not limited to uses directly available to the general public. Public use includes uses that redound to the indirect benefit of the public. The fact that only a few would actually benefit does not diminish the character of public use. (Manosca v. Court of Appeals, G.R. No. 106440, January 29, 1996) (Duka)

Examples of what qualifies as public use: highways, public utilities, airports, parks, housing for the poor, slum clearance, agrarian reform, pilot development centers.

Important rule — abandonment: Taking of private property is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. If the government abandons the particular purpose and does not pursue another valid public use, the former owners may seek the reversion of the property, subject to returning the just compensation received. (Mactan-Cebu International Airport Authority v. Lozada, G.R. No. 176625, February 25, 2010) (Duka)

However: If the decree of expropriation gives the entity fee simple title (unconditional ownership), then the expropriator becomes the absolute owner and may change the use or even abandon it without reversion. The right of reversion arises only when the expropriation was conditional or the purpose fails entirely without substitute public use. (Duka)

5. Just Compensation

This is the fifth and most litigated element. Covered in detail in Section VI below.

V. PROCEDURE FOR EXPROPRIATION

Expropriation follows Rule 67 of the Rules of Court. There are two stages:

Stage 1 — Condemnation: The court determines whether the plaintiff has a lawful right to take the property for public use or purpose. The court may issue: (a) an order of expropriation if the right is established, or (b) an order of dismissal if it is not. (Tiongson et al. v. National Housing Authority, G.R. No. 166964, October 11, 2005) (Duka)

Stage 2 — Ascertainment of Just Compensation: Commissioners are appointed to determine the amount to be paid. The court reviews and adopts the commissioners' report.

Writ of Possession: In national government infrastructure projects governed by R.A. 10752 (Right-of-Way Act), the government may obtain immediate possession upon depositing 100% of the BIR zonal valuation of the land plus the replacement cost of improvements and the current market value of crops and trees. The court must issue the writ of possession ex parte within 7 working days of deposit — no hearing required. (Duka)

For LGUs under R.A. 7160: Immediate possession is allowed upon filing of the expropriation proceedings and depositing at least 15% of the fair market value based on the current tax declaration. (Duka)

Inverse Condemnation

If the government takes private property without filing the proper expropriation action, the property owner is not without remedy. The owner may file an inverse condemnation action — a complaint for payment of just compensation and damages. In such cases, the provisions for appointment of commissioners under Rule 32 (not Rule 67) govern. (National Power Corporation v. Spouses Asoque) (Duka)

VI. JUST COMPENSATION — IN DETAIL

A. The standard: Fair Market Value

Just compensation is qualified by "just" to convey that the equivalent must be real, substantial, full, and fair. The general rule is that just compensation = fair market value of the condemned property. (Duka)

Fair market value is defined as the price that a willing buyer and a willing seller — both of whom are not compelled to transact — would agree on. It is "the amount fixed in the open market in the usual and ordinary course of legal trade and competition." (National Power Corporation v. Spouses Chiong, G.R. No. 152436, June 20, 2003) (Duka)

B. Time of valuation: Date of taking or filing of complaint, whichever came first.

Section 4, Rule 67 explicitly provides that just compensation is "to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first." (Republic v. Cebuan, G.R. No. 206702, June 7, 2017) (Duka)

Practical implication: If the government enters and occupies the property in 2020 but files the complaint only in 2024, the valuation date is 2020 — not the more valuable 2024 value. This prevents the owner from benefiting from government-induced increases in value after the taking.

C. Consequential damages minus consequential benefits

When only part of a property is expropriated, the owner is not limited to compensation for the portion taken. The full formula is:

Just Compensation = Fair Market Value of portion taken + Consequential Damages − Consequential Benefits

Consequential damages are injuries directly caused on the residue of the property by reason of the expropriation (e.g., the remaining land becomes less accessible or less usable). Consequential benefits are the increase in value of the remaining portion due to the public project. However, consequential benefits can never exceed consequential damages — if they do, the excess is disregarded and the basic value is still paid in full. (National Power Corporation v. Spouses Chiong; Republic v. Cebuan) (Duka)

D. Just compensation can be agreed upon without court intervention.

The determination of just compensation may be agreed upon by the parties without judicial intervention. If they agree, no commissioners are needed. (Republic v. Gingoyon) (Duka)

E. Just compensation is a judicial function.

Congress cannot fix just compensation by legislation and bind the courts. Any statutory determination is only a prima facie assessment. The final determination is always a judicial function subject to court review. (Export Processing Zone Authority v. Dulay) (Duka)

The Dulay Doctrine: Presidential decrees that fixed just compensation at the lower of the owner's tax declaration or assessed value were declared unconstitutional as an impermissible encroachment on judicial prerogatives, rendering courts into mere rubber stamps.

F. Effect of non-payment of just compensation

Just compensation embraces not only the correct amount but also payment within a reasonable time from taking. Without prompt payment, compensation cannot be considered "just." If compensation is not paid in a reasonable time, the party may be treated as a trespasser ab initio.

The prevailing doctrine: non-payment of just compensation does not automatically entitle the private landowner to recover possession. However, if the government fails to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners have the right to recover possession of their property. (Republic v. Ker and Company Limited, G.R. No. 136171, July 2, 2002) (Duka)

VII. EMINENT DOMAIN BY LOCAL GOVERNMENT UNITS

The statutory basis: Section 19, R.A. 7160 (Local Government Code)

Section 19 of the LGC confers upon LGUs the power to expropriate. It expressly provides the parameters:

"A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation..."

Four Essential Requisites for LGU Expropriation:

1. An ordinance (NOT a mere resolution) is enacted by the local legislative council authorizing the local chief executive to exercise the power;
2. The power is exercised for public use, purpose, or welfare, or for the benefit of the poor and the landless;
3. There is payment of just compensation; and
4. A valid and definite offer has been previously made to the owner, and such offer was NOT accepted. (Municipality of Paranaque v. V.M. Realty Corporation, G.R. No. 127820, July 20, 1998) (Duka)

The Critical Ordinance Requirement

An LGU cannot authorize expropriation through a mere resolution. The LGC expressly requires an ordinance. The distinction matters:

• A municipal ordinance is a law — it is general, permanent, and requires three readings.
• A resolution is merely a declaration of sentiment or opinion — it is temporary and does not require three readings.

Congress deliberately departed from the old LGC which allowed resolutions, requiring the stricter form of an ordinance. (Lagcao v. Labra, G.R. No. 155746, October 13, 2004) (Duka)

The Power of LGUs is "Inferior Domain," Not Eminent Domain

LGU expropriation power is described not as true eminent domain but as "inferior domain" — it is only as broad as Congress allows it to be, subject to the principal-agent relationship between Congress and the LGU. Courts continue to review whether the power is exercised within the bounds of the delegation. (Duka)

Constitutional Limitations on LGU Eminent Domain:

1. No person shall be deprived of life, liberty, or property without due process of law;
2. Private property shall not be taken for public use without just compensation.

VIII. THE REGULATION vs. TAKING DISTINCTION

(Police Power vs. Eminent Domain — The Critical Divide)

Both police power and eminent domain have the general welfare as their object. The crucial difference lies in their method and consequence:

The working rule: When the State restricts the use of property to prevent harm to the public → police power, no compensation. When the State appropriates property for public benefit → eminent domain, compensation required.

The hard line cases:

• A building condemned as a fire hazard and ordered demolished → police power (noxious purpose); owner gets nothing.
• A cemetery ordered to reserve 6% of its area for paupers (City Government of Quezon City v. Ericta) → eminent domain (wholesome property devoted to public use); compensation required.
• Billboards ordered removed for city beautification (Churchill v. Rafferty) → police power (nuisance abatement); no compensation.
• Prohibition of building construction that destroys plaza view (People v. Fajardo) → eminent domain (easement on property for public benefit); compensation required.

There is, admittedly, no categorical criterion for all cases. The analysis depends on: does the regulation merely restrict use (police power), or does it appropriate a property interest for public benefit (eminent domain)?

IX. SPECIAL APPLICATIONS

Easements as Compensable Taking

Expropriation does not always involve transfer of title. An easement of right-of-way traversing private property is a form of compensable taking under eminent domain, even though ownership is retained. When transmission lines restrict the owner's use of the land (e.g., prohibiting plants taller than 3 meters, creating safety hazards), full just compensation must be paid — the owner is not limited to the value of the easement alone. (NPC v. Spouses Asoque; NPC v. Gutierrez) (Duka)

Services as Property Subject to Expropriation

The concept of "property" subject to eminent domain extends beyond physical things. In Republic v. PLDT (G.R. No. L-18841, January 27, 1969), the Supreme Court held that the government could compel the PLDT to interconnect its telephone lines with the government system upon payment of just compensation. Services provided by public utilities may be subject to expropriation in the public interest. (Duka)

Closure as Unlawful Taking

The penalty of closure of a business likewise constitutes unlawful taking that must be compensated by the government. The burden of compliance must be borne by the public since the public benefits from such closures. (City of Manila v. Laguio, G.R. No. 118127, April 12, 2005) (Duka)

X. JURISPRUDENCE CHEAT SHEET

XI. SUMMARY TABLE

Compiled for personal study use — ConLaw 2, JD 302 | Atty. Llorico Primary source: Duka, Constitutional Law 2 (2025)