By Nicole Cook
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In my February 14, 2018 post, I explained the eminent domain power of the government—the power of the government to take private property rights for public use—and the government’s and landowner’s rights and responsibilities during the condemnation process. This includes that the government may not possess the property until it provides the owner with “just compensation.” In this post, I’ll explain how the government might take property rights from an owner without declaring a “taking” or initiating the condemnation process, a situation called “inverse condemnation,” and what rights a property owner in that situation has to seek just compensation.
What is Inverse Condemnation?
Generally, any severe interference with private property which destroys or lessens the property’s value or substantially infringes on or deprives the owner of its use or enjoyment is a “taking,” even if the property owner retains title and possession of the property. Inverse condemnation is a taking of property rights without just compensation; it’s when the value of property has been taken in fact by the government even though the government made no formal attempt to exercise its eminent domain power.
How Will I Know Inverse Condemnation When I See It?
Inverse condemnation typically arises when a government agency either passes some type of regulation restricting a property owner’s ability to use their property (like changing zoning restrictions), places an unreasonable development restriction on a property owner who is attempting to develop his or her property, causes a physical invasion of the property (like flooding), or restricts or removes access to a property.
Inverse condemnation can also occur when the government’s actions create a credible and prolonged threat of condemnation over a property in a way that significantly diminishes the property’s value or effectively forces an owner to sell. For example, in Amen v. City of Dearborn, the court held that the city’s combined actions amounted to a taking of former residents’ properties through inverse condemnation. In that case, the city denied or unreasonably delayed building and repair permits or demanded expensive renovations as a condition to receiving a permit; demanded residents perform maintenance and repairs not required by the building code; announced the area would be cleared, thereby inhibiting residents from selling their homes; and allowed properties in the area to remain vacant and unprotected, all in order to coerce residents into selling their homes to the city.
In Maryland, a claim for inverse condemnation can also be based on the government’s failure to act. In Litz v. Maryland Department of the Environment, run-off from failed septic systems serving homes and businesses in the surrounding town of Goldsboro contaminated a lake located on a privately owned campground in Caroline County. The human sewage seeped out of the septic fields into ground and surface water flowing into drainage swales, which drained into streams flowing into the lake. Naturally, people stopped camping there and the owner of the campground lost the property through foreclosure because of lost income. She sued the local municipality and the State of Maryland for inverse condemnation based on the failure of the state and local authorities to do anything to stop the pollution, and Maryland’s Court of Appeals held that the government’s failure to act could give rise to a “taking” of property through inverse condemnation.
Courts in other states have also awarded compensation for inverse condemnation when the government failed to act where it had an affirmative duty to do so. In some cases, property owners lost access to their property after the government failed to reasonably maintain and repair the government-owned road leading to their property. In other cases, property owners received compensation for inverse condemnation when their properties flooded because the government failed to dredge a river levee which it knew was weakening due to a build-up of vegetation.
What Can I Do If Something Like This Happens To Me?
In Maryland, you have three years from the date of the “taking” to file a claim for inverse condemnation. What constitutes the date of the taking will, however, depend on the facts of the case, and might be challenged by the government if there is any chance that the claim could be dismissed because you filed your claim too late. That means that you should contact an attorney immediately if you experience any substantial interference with your private property that destroys or lessens the value of the property or your right to use and enjoy the property.