The Takings clause of the Fifth Amendment to the U.S. Constitution guarantees that in no case will “private property be taken for public use, without just compensation.” Or, in other words, if the government seizes private property, then that property's owner must receive fair compensation. The Fourteenth Amendment extended the takings prohibitions under the Fifth Amendment to the states and their political subdivisions. Additionally, most state constitutions and statutes have substantially similar provisions to the federal Takings Clause. In typical taking scenarios, eminent domain and condemnation are invoked to provide land for public schools, roads, hospitals, utilities, and similar customary public uses. However, in more recent times, the government has stretched the classic definition of a taking for public use to include a variety of “rationally conceivable” public benefits thinly tethered to public use.
There are two types of government takings. The first type of taking involves the exercise of eminent domain, otherwise known as a direct condemnation. In that instance, a government that wishes to take an individual’s private property brings that individual into court in order to obtain the individual’s private property for just compensation. A civil jury determines the value of the just compensation to be awarded to the individual. The second type of taking, known as inverse condemnation, takes place when a government takes property from an individual, but denies that it is taking the property pursuant to its power of eminent domain. In such cases, an individual who wants to receive just compensation for their property must bring an action against the government. The individuals seeking just compensation in inverse condemnation cases only receive compensation if they prevail in court.
Beyond the two takings scenarios described above, there may also be a third kind of taking – a judicial taking. Recent U.S. Supreme Court case law appears to recognize that a taking could occur by an act of the judiciary. The Court’s opinion said that judicial taking occurred when a state court “declare[d] that what was once an established right of private property no longer exists.” Whether the Court will establish more firmly that judicial takings may occur in the future remains to be seen.
Condemnation and property takings attorneys can assist individual property owners in “classic” takings scenarios, whereby the government seeks to obtain private property for public use upon just compensation. However, in other instances where governmental regulations “go too far” and impose burdens on private interests that should be borne by the public as a whole. In those instances, condemnation and takings attorneys can help evaluate whether the regulation unconstitutionally deprives a property owner of all economically viable use of property or has a significant impact on its value and the owner’s investment-backed expectations. If the regulation goes too far, then a condemnation and takings attorney may represent a client in a lawsuit for just compensation or to push back the overly burdensome regulation.
Christensen & Jensen’s condemnation and property takings attorneys have the knowledge and experience to handle all types of condemnation and takings, whether on the side of the government or the individual. Given our attorneys’ extensive background in water law, land use, and real estate, Christensen & Jensen is uniquely poised to handle all aspects of takings dispute. Our condemnation and property takings attorneys can assist in deciding whether accepting the compensation offered for the property is in a client’s best interest, or assist the government in determining what is “just compensation.” Our attorneys can negotiate or, when necessary, litigate regarding the government’s right to take the property or the amount of just compensation owed the property owner. Additionally, our attorneys are quite adept at assisting the government to set forth the public purpose of the proposed acquisition and/or can help to scrutinize the government’s proposed public purpose for the acquisition. Our attorneys can further evaluate bad faith negotiation issues, and critique the amount of compensation, the form of payment, and whether additional compensation, such as temporary business damages or severance damages, is warranted.
Condemnation and property takings services provided by Christensen & Jensen include:
Eminent domain “takings”/condemnation actions
Inverse condemnation actions
Pre-condemnation planning and negotiation
Negotiating relocation costs and protective leases
Conducting independent assessments of valuation
Working with tenants, mortgagees, and easement and other lienholders