Eminent Domains

Copyright (c) 2014 Mark Shapiro

Inverse condemnation (sometimes called eminent domain) is a legal phrase which describes a circumstance where the government takes personal property and fails to pay the property owner as is required by the Fifth and Fourteenth Amendments to our United States Constitution.

One of many judgment articles: I am a Judgment Broker, not an attorney, and this article is my opinion based on my experiences within California, please consult with an attorney when you require legal advice.

In certain jurisdictions, inverse condemnation includes property damage. In order to get compensated, the property owner often must start a lawsuit our government. With these kind of situations, the owner will be the plaintiff, and that is the reasons such actions is considered to be inverse, because the position of the sides will be reversed. This is in contrast to the usual situation of a direct condemnation, when the government is the plaintiff, that sues a defendant-owner so they can seize the owner's personal property.

Government seizures may be physical (e.g., flooding, the taking of land, deprivation of land access, retention of land after a lease to our government has expired, removing access, removal of ground-based support, etc.) or a regulatory seizure (if regulations become so overhanded they make the regulated property unusable by the property owner for any reasonable or economical purposes).

Occasionally, inverse condemnation is just too much and becomes controversial. See Pennsylvania Coal Co. vs Mahon, 260 US 393 (1922), where the owner of a property lost value and marketability, removing the benefits of ownership without payment.

Alas, the US Supreme Court has not elaborated on what "too far" is. But, it has defined 3 circumstances where inverse condemnation happens:

1) Physical occupation or seizures.

2) The reduction of the property's utility or value to the degree that it's no longer capable of being economically viable.

3) On a precondition to the issuance of some permit, our government demands that a property owner give their personal property to the government, even when there's not a rational reason to do so. See Nollan versus California Coastal Commission, 483 U.S. 825 (1987).

Because of these 3 circumstances called "per se" taking by regulation, the decision whether property was taken is made by a court consideration of three issues:

1) The nature of the government regulations.

2) The economic impact of the regulations on a owner's property.

3) The extent to which the regulation interferes with the owner's reasonable, investment-backed expectations.

The three issues are called the "3-factor Penn Central test", (after Penn Central Transportation Company versus City of New York, 438 US 104, 124 [1978]). The Penn Central decision has been criticized for it's controversial "taking issue" decision, because its three-factor approach was so unclear that it made it virtually impossible for attorneys to know before filing their lawsuit, what factors will be ruled decisive by the court, and the way use the three factors.

Railroads and other public utilities, are given the rights to condemnation (also named eminent domain) by state laws, and they can become liable for inverse damaging or seizing of property during their activities. Examples of this include taking property (e.g., supplies for our military forces during wartime); intellectual property (e.g., copyrights, patents, etc.); and certain contracts.

Comments? Questions? Email Here

© HowtoAdvice.com

How to Advice .com