Inverse Condemnation

Under the rules of eminent domain, the condemning authority is supposed to declare a taking when it acquires private property without the owner’s consent. That declaration then grants rights to the public property owner in the eminent domain process.  Sometimes, though, a taking occurs and no declaration of taking is made.  In this situation the law allows the property owner to seek a court order declaring that a taking occurs in order for the property owner to receive the rights and benefits of the eminent domain law.  The process for obtaining this order is called inverse condemnation.  In many states, when a landowner successfully obtains the inverse condemnation order, the condemning authority must pay all the costs and legal fees that the owner incurred to obtain the order.

Examples of inverse condemnation situations:

1)         The government physically occupies private property without delivering a taking.  When this occurs, it is most often associated with a temporary taking.  A temporary taking requires payment by the government just like a permanent taking.  A failure to declare a taking when a permanent taking occurs is quite rare.

2)         A property owner loses some or all access to property because of a government project and no taking is declared.  Loss of access requires compensation if the owner is left with less than a reasonable access.  Where all access is lost, the condemning authority will usually recognize a taking and make a declaration.  Failure to make a declaring of taking most often occurs where only partial access is taken without any accompanying acquisition of real estate.

3)         Regulatory taking.  The government passes a regulation, law, or ordinance that deprives the owner of all or part of the value of real estate.  To claim a total taking by the regulation, the owner must show that the affected property has no economic value after the taking.  To claim a partial taking the owner must show that his/her reasonable investment backed expectations have been denied because of the regulation.

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2 Comments to “Inverse Condemnation”

  1. mk mccarrel says:

    I believe i have a case of “Inverse Condemnation” regarding a vacant lot (purchased Aug.15,2005 ) in a subdivision in Sunset Beach NC. Town is claiming an “Easement by Prescription” roadbed “in favor of the public” across 2 sides of my corner lot.
    The subdivision plat exists and is recorded in Brunswick County
    The plat shows my lot in its entirety with no roadway within the boundaries.
    The actual dedicated R/W exists alongside but is not being used by the town for the R/W…
    only for some public utilities.
    I am a NC Real Estate Broker and I read that a “prescriptive easement ” cannot be a “public”
    roadway and although not having to be exclusive, must not be “for public use”.
    The Town does not believe they have to pay “damages ” since the roadway has existed for
    over 20 years.
    Currently the new sewer line is being placed within my lot to follow the roadbed ,not within the dedicated R/W. I have complained in writing. Nothing happens. No response.
    The Town is to open a new “Boat launch, Park and Parking recreation area approx 1200ft
    from my lot on the Intra Coastal Waterway at the new Sunset Beach Bridge. The traffic is going
    to increase when that opens.

  2. Kevin Wegner says:

    Our property is located in Orland Park, IL 60467. The entire parcel was designated as being in a floodway back in the early 1990’s. We recently received a citation for using our land in conflict with Article 802 “appropriate uses of a floodway”. We have been utilizing our land in its current manner (detached garage, storage sheds and parking) for approximately 20 years in accordance with IDOT Administrative Code Chapter 1 Section 708 “appropriate uses of a floodway”. The county apparently revised their “appropriate uses of floodways” recently with Article 802 and removed detached garages, storage sheds, parking and radio antennas as an acceptable use and is now advising we can no longer use it for these purposes. The county is advising that Article 802 is retroactive and nothing is “grandfathered” yet our neighbors to the North and South of us, who are also in the floodway, are not being asked to change their use.

    We believe we have an equal protection claim, inverse condemnation action or a regulatory taking claim and are seeking an attorney who will help guide us through this process.

    We have consulted with land use attorneys previously who did not want to get involved with pursuing action against Cook County. We are looking for an attorney who believes in property rights, recognizes that our rights are being violated in this case and will pursue remedies on our behalf.

    Any assistance you may be able to offer would be appreciated.


    Kevin Wegner

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