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April 11th, 2016 — By — In Articles

The Government is on My Property. What are My Rights?

As a United States citizen, the U.S. Constitution, federal laws and the Constitution and laws of your state protect you against government intrusion upon your private property.  While the Fifth Amendment to the U.S. Constitution establishes that government authorities may use the power of eminent domain to take private property, the Fifth Amendment limits the power of eminent domain by requiring that the taking of private property be for a public purpose and that just compensation is paid to the property owner.  Additionally, condemning agencies must follow specific procedures or steps when exercising the power of eminent domain.  While these procedures vary from state to state, there are some basic steps which we discussed in a previous post here (discussing the differences between eminent domain and inverse condemnation).

What if the government simply takes your property? While this may sound far-fetched, if it has happened to you, you know all too well that government agencies do not always play by the rules. In this situation, private property owners can defend their rights through a type of legal action known as “inverse condemnation.”

Inverse Condemnation: How to Protect Your Property Rights

What Constitutes a Taking?

A “taking” of private property occurs when a government agency acquires or appropriates private property for a public use or purpose.  However, the physical seizure of your property does not have to occur to constitute a violation of your Constitutional rights.  Far lesser actions can wrongfully impair your property rights.  From temporarily flooding private property to enacting a zoning ordinance that restricts the use of private land (referred to as a “regulatory taking”), there are numerous ways that government authorities can “take” private property.

Inverse condemnation is not limited to the permanent physical taking of property.  Rather, it can include a temporary taking or occupation of private property, such as flooding, and also includes government regulation which burdens your property in such a way that you can not derive any economical use out of it.  When government regulation significantly burdens private property the inverse condemnation may be referred to as a “regulatory taking.”  Most importantly, in an inverse condemnation or regulatory taking scenario the government has failed to pay just compensation for the private property rights that have been taken.

The Inverse Condemnation Process

When government acquires property without following eminent domain procedures, the affected property owner has the right to bring an inverse condemnation lawsuit against the government entity that has taken his or her property.  When the government skips the steps of the eminent domain process, property owners are often left with no choice but to take legal action against the government.

Each state may follow different procedures and may have differing statutes of limitations – the legal deadline for filing a suit – for inverse condemnation actions. Because your property rights are at stake, we recommend consulting with an experienced inverse condemnation attorney before filing an inverse condemnation or regulatory takings claim.

Taking Action to Protect Your Property

In a typical inverse condemnation case, the property owner seeks to recover just compensation based on the government’s possession or use of their property. In some states, property owners can recover their attorneys’ fees and other expenses as well. In cases involving regulatory takings, property owners may seek money damages, development or zoning permissions or simply may seek to have the offending regulations invalidated.

Inverse condemnation and regulatory takings cases can be quite complicated, particularly because the responsibility falls upon you, the affected landowner, to prove that a taking has occurred (and fighting the government is not easy).  The suit filed by the owner is “inverse” because it is brought by the property owner, not by the government agency having eminent domain power.  This is why the property owner carries the burden of proof that property rights were acquired without the payment of compensation.  (In a direct condemnation action in which the government follows eminent domain procedures, the burden of proof falls upon the condemnor to demonstrate that the acquisition is necessary and that the project has a true public purpose.)

Inverse condemnation cases, however, can be won.  Koontz v. St. Johns River Water Management District is an example of an inverse condemnation victory won by the property owners.  More about the Koontz case here and here.  (Disclosure: OCA filed an amicus brief with the U.S. Supreme Court in support of Koontz.)

Contact the Inverse Condemnation Attorneys at Owners’ Counsel of America

If you believe that the government has violated your Fifth Amendment rights, we encourage you to contact an inverse condemnation lawyer with Owners’ Counsel for more information about protecting your legal rights. Owners’ Counsel of America is a nationwide network of leading attorneys practicing in the areas of inverse condemnation and eminent domain.