What Is Inverse Condemnation?
A property owner may bring a legal action for inverse condemnation if the government deprives the owner of the economic value of their property or if it doesn’t promote substantial government interests.
The government action must damage or limit the citizen’s rights to use the property, in whole or in part, so much that it’s the equivalent of a taking or is a condemnation of the entire property. Gaining no compensation for the action is a central element of the condemnation.
Claims for taking and inverse condemnation fall into two general categories: physical and regulatory. Physical takings involve actual intrusion, seizure or damage to the property.
Regulatory takings occur when there’s no physical invasion, but the government permanently deprived the property owner of all beneficial or economically viable uses of their property. Inverse condemnation has a long history in the United States — and a lengthy legal history.
History of Inverse Condemnation Claims
Inverse condemnation comes from the law around the Takings Clause of the Fifth Amendment of the U.S. Constitution. It states, “ … nor shall private property be taken for public use, without just compensation
The history of eminent domain law in the United States goes back to the Fifth and Fourteenth Amendments and subsequent government takings of private land for various purposes, including railroads and other public utilities.
In 1887, the Tucker Act gave the federal court jurisdiction over inverse condemnation claims.
Litigation relating to inverse condemnation and eminent domain expanded in the 20th century as the government grew its land holdings relating to national parks, infrastructure and military installations.
The case of Pa. Coal Co. v. Mahon 261 U.S. 502 (1922) is the first to address regulatory taking.
Armstrong v. United States, 364 U.S. 40 (1960) established the principle that the “just compensation” clause is to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Physical intrusions or interference that were found by the courts to be grounds for inverse condemnation include flooding, noise, smoke or odor, nuisance-like activities and activities that have a permanent impact on market value.
Inverse Condemnation vs. Eminent Domain
Inverse condemnation is related to eminent domain, which occurs when the government starts the seizure of a property. The right of the government to claim private property for “public use” is called eminent domain. It includes situations such as creating easements.
The due process clause of the Fifth Amendment requires the government to provide due process before taking someone’s property. Condemnation occurs when the government doesn’t provide due process and make a reasonable or just payment for the land.
One difference between eminent domain and inverse condemnation is that the government initiates eminent domain proceedings. Property owners begin the inverse condemnation process. It is a legal remedy available to property owners against the government.
The Process of Inverse Condemnation
To establish inverse condemnation, a property owner must show that the government’s action on their property is equivalent to an exercise of eminent domain. The property loss must be drastic, substantial and have some permanence.
Successful legal claims include situations where the government physically occupied the land or eliminated the owner’s use or access to the property.
The burden of proof is on the landowner, the claimant, to prove inverse condemnation. Further, the property owner must exhaust all administrative remedies before bringing an inverse condemnation claim.
This process involves a judicial proceeding to determine liability. Then, if the judge determines that a taking has occurred, there is another trial to determine compensation.
How Can an Eminent Domain Lawyer Help?
If you pursue an inverse condemnation case or a public use condemnation case, you will want an eminent domain attorney representing you.
In a public use condemnation, the government must offer an amount in compensation for the land taken. It’s difficult to quantify the amount in question for the property that gets taken and hard to assess damage that was done to the rest of your land. Your attorney can assist with this process.
Before hiring an attorney to fight eminent domain, gain a firm understanding of the lawyer’s experience level, such as with real estate law. Ask them to outline their strategy for an eminent domain lawsuit and provide a dollar range of what your potential final damages award should be. Finally, ask about the costs involved in appraisals and legal fees so that you aren’t surprised later.
Who Qualifies for Inverse Condemnation?
To qualify for inverse condemnation, you must first show that your property was taken, damaged or destroyed for public use by the government and that you have not received adequate or just compensation.
If you have a statutory remedy available to recover your property or associated value, you may be prevented from suing for inverse condemnation. Financial compensation is the only legal remedy for an inverse condemnation claim.
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- Office of the Texas Attorney General. (2019, December 12). Inverse Condemnation. (Retrieved from https://www2.texasattorneygeneral.gov/conferences/handouts/2019-govt-law-and-liability/p_12-13-19_1045AM_INVERSE_CONDEMNATION_HANDOUT_BONNEN.pdf
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