There are times when government activities make people’s land practically worthless for the owner’s purposes. It is as if the government seized the land without paying the landowner something for their loss.
Faced with this unfortunate, sometimes devastating situation, some landowners file suit against the government. They argue they should get compensation like any other landowner whose land has been pulled out from under them. Such actions against the government have the peculiar name “inverse condemnation.”
Creative ways officials can make your land useless
There are a lot of ways to render a plot of land useless to its owner.
The change might be physical. A nearby infrastructure project either built or approved by the government may flood a home or business or change the groundwater so it is useless for crops. A parking lot may be destroyed but not the adjacent business that simply could not survive without the parking.
Or the change can be regulatory. Maybe a hunting lodge loses its customers because the government now prohibits hunting for miles around. Maybe authorities dent a permit to a farm due to new water-use regulations.
A “taking” without just compensation
Regardless of the method, government action may take the land’s value and/or usefulness much as if it had forced the landowner to give up their property rights. The government took the land but did not take responsibility.
The framers of the U.S. Constitution made provisions so this kind of unfairness would not happen again as it had under the British. The Fifth Amendment refers to this “taking” and promises never “shall private property be taken for public use, without just compensation.”
The usual method of someone’s land consistent with the constitution is to “condemn” the property. The local, state or federal government seizes the land but pays the owner for their trouble. As the constitution says, the compensation should be “just,” as judged by a court.
Inverse condemnation tries to turn the tables
Inverse condemnation is “inverse” because instead of the government suing the landowner to convince a court they need the property and that the price is right, the landowner sues the government to convince a court the government took the land and never paid the right price.
Unlike direct condemnation, where the government must prove its case, the burden of proof is on the landowner during an inverse condemnation suit. Neither kind of proceedings is easy for most landowners, but the switch in the burden of proof makes a successful inverse condemnation especially challenging. Most landowners benefit from qualified legal counsel.
First, they must prove that the land was useful or valuable, which may take detailed documentation, expert testimony and reluctant witnesses.
Then, they must prove not only that the use and value of the land is now significantly compromised, but that it was specifically the government action, physical and/or regulatory, that caused the compromised value.