What is inverse condemnation in California?
Most people are at least somewhat familiar with the concept of eminent domain, which occurs when a governmental entity wishes to take a private individual’s property in order to benefit the public in some way, such as to build a library or to make wider roads. Inverse condemnation is another type of taking by the government of private property, but in a different way.
Inverse condemnation occurs when some type of public project causes property damage to private property without paying the property owner. This may result in the property being damaged, taken, or occupied. The property owner will then sue the governmental entity for compensation, which is called an inverse condemnation case. Some types of damage that could result in an inverse condemnation include flood damage, a loss of adjacent support, landslide or the land sinking, or a physical occupation of the property.
The U.S. Supreme Court has ruled that in order to prove an inverse condemnation case, the property owner must be able to show there has been a taking. There are four types of takings according to the Supreme Court:
(1) When the government physically occupies or invades private property. If a government permanently occupies private property, this is a taking. It doesn’t matter how small the occupation is. Some examples of this include a government installing cables and cable boxes along private property, or low flying governmental aircraft flying regularly over a landowner’s property.
(2) When a government takes actions that deprive the owner of the economically beneficial use of the property. An example of this would be when a city rezones property to disallow any structures to be built on that property. This would deprive the owner of the right to benefit from the property by building structures that could be leased.
(3) When a government takes actions that economically burdens the property owner. This could include the government seriously restricting the use of certain property. Obviously, some actions that economically burden the property owner are allowed, such as fines for environmental hazards and the required payment of property taxes, but there are limitations on the actions governments can take.
(4) When the government conditions a permit on the owner’s agreement to dedicate part or all of its property to a public use. An example of this could include a business applying for a permit to enlarge a local business, but being refused unless the owner agreed to sell its other land to the city for a park at an agreed-upon price.
Once a property owner can prove that there has been a taking and that it was for a public use, the property owner still must meet other burdens. The biggest is proving damages. Although it may be clear that the government did engage in a taking of private property, if the property owner cannot show that he or she was damaged by the taking, damages will not be awarded generally. Damages can be proven by introducing evidence about the value of the property before the governmental taking and after the governmental taking. It may be possible to recover not only money for the property damage, but also for attorney’s fees and interest. One thing that does not generally have to be proven is negligence or a breach of some standard of care – normally all that must be proven is that the taking happened and there were damages, not that the government was negligent.
In an inverse condemnation trial, generally there are two stages. The first is where a judge decides legal issues, and the second is where a jury decides the value of the property and determines damages.
It can be tricky to determine when inverse condemnation does or does not exist. Obviously, local governments have the right to place restrictions on certain types of property uses, as well as to determine zoning laws. They have a right to collect property taxes and to levy fines for violations of property laws. However, there are limitations on what governments can do that will affect the value of your property.
If you believe that an inverse condemnation as occurred involving your property, call Oakland-Walnut Creek real estate attorney Robert Levy at 510-465-0025 for a consultation. It’s important that you speak with an attorney – an inverse condemnation can be complex, and it’s not something that you should attempt yourself. You should speak with someone sooner rather than later, so that the statute of limitations does not expire. Call today to schedule a consultation about your case.