A public entity may exercise the power of eminent domain only if it has adopted a resolution of necessity that meets the requirements of Article 2 (commencing with Section 1245.210) of Chapter 4.
§ 1240.040.Adoption of Resolution By Public Entity Required to Exercise Power
Title 7. Eminent Domain Law · Chapter 3. The Right to Take · Article 1. General Limitations on Exercise of Power of Eminent Domain · Enacted 1975 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1240.040 conditions any exercise of eminent domain by a public entity on the prior adoption of a resolution of necessity that satisfies the procedural requirements of Article 2 of Chapter 4, beginning at § 1245.210.
Full Text of § 1240.040
Plain-English Summary
Section 1240.030 lists what a public entity must find before taking property. Section 1240.040 says how that finding has to be made official: through a resolution of necessity that meets the procedural requirements set out in Article 2 of Chapter 4, starting at § 1245.210.
Those procedural requirements, covered elsewhere in this title, include giving the property owner notice and an opportunity to appear and be heard before the resolution is adopted. A public entity that skips that process, or adopts a resolution missing the required findings, hasn't satisfied § 1240.040, and its eminent domain action is vulnerable to challenge on that basis.
This section functions as a gatekeeper: no resolution of necessity, no eminent domain. It applies across every chapter of this title, so the resolution requirement carries forward into the future-use, substitute-condemnation, excess-condemnation, compatible-use, and more-necessary-use categories that follow.
Frequently Asked Questions
What must a public entity do before it can exercise eminent domain?
Adopt a resolution of necessity that meets the requirements of Article 2 of Chapter 4, commencing with § 1245.210.
What happens if the resolution of necessity doesn't meet those requirements?
The public entity hasn't satisfied § 1240.040, which can expose the eminent domain action to challenge.
Does this resolution requirement apply to every category of taking in this title?
Yes. It's a baseline condition that carries forward into future-use, substitute-condemnation, excess-condemnation, compatible-use, and more-necessary-use takings alike.
Amendment History
Added by Stats. 1975, Ch. 1275.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: resolution of necessity california eminent domainrequirements before exercising eminent domain california