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When Government Actions Rise to Inverse Condemnation Claims
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When Government Actions Rise to Inverse Condemnation Claims

November 22, 2016 Florida Eminent Domain Law Blog

Reading Time: 4 minutes


Eminent domain is a legal proceeding brought by the government, or an entity acting on behalf of the government, where the government actor asserts its authority to condemn private property for public use. Lingle v. Chevron, 544 U.S. 528 (2005). Under the U.S. and Florida Constitutions, the government can take private property only in limited situations and must pay the private property owner just compensation for the land it takes. But what happens when there is a de facto governmental taking of private property without any eminent domain proceedings and no just compensation paid to the property owner? What recourse does the property owner have after-the-fact? The available remedy is called inverse condemnation.

Inverse condemnation is a legal action brought by a property owner against a government entity to recover the value of property taken by that entity in the absence of formal eminent domain procedures. Jordan v. St. Johns County, 63 So.3d 835, 839 (Fla. 5th DCA 2011). It is a remedy available to one whose property rights have been taken for public use without consent and without just compensation. City of Jacksonville v. Schumann, 167 So.2d 95, 98 (Fla. 1st DCA 1964). A continuing trespass or nuisance caused by a government actor may also support an inverse condemnation claim. Suarez v. City of Tampa, 987 So.2d 681 (Fla. 2d DCA 2008).

Proof that a governmental body or a corporate entity acting on behalf of the government has effected a taking of private property is an essential element to an inverse condemnation claim. Rubano v. Dept. of Transp., 656 So.2d 1264, 1266 (Fla. 1995). What constitutes a taking of private property can be abstract, and governmental actions—or even inactions—not intended to be a physical taking of property may still give rise to an inverse condemnation claim. Over the years, numerous cases have defined the parameters of what circumstances may constitute a valid inverse condemnation claim.

To illustrate, a case for inverse condemnation may exist where:

  • An airport runway extension causes private property to decrease in value due to noise, vibrations and other disturbances (Foster v. City of Gainesville, 579 So.2d 774 (Fla. 1st DCA 1991));
  • A government-controlled drainage system floods private property (Leon County v. Smith, 397 So.2d 362 (Fla. 1st DCA 1981));
  • The Department of Agriculture’s action to eradicate the spread of damaging citrus canker actually destroys healthy trees (Dept. of Agriculture v. Bogorff, 35 So.3d 84 (Fla. 4th DCA 2010));
  • The city builds a concrete curb alongside the frontage of property depriving access to needed parking spaces (City of North Miami Beach v. Reed, 749 So.2d 1275 (Fla. 3d DCA 2000));
  • County construction causes the unintended flooding of private property with a degree of permanency (Pinellas County v. Baldwin, 80 So.3d 366 (Fla. 2d DCA 2012));
  • Government action eliminates direct access to property from a particular road (Palm Beach County v. Tessler, 538 So.2d 846 (Fla. 1989));
  • The government fails to maintain public roads to the point where access to private property is denied. Jordan, 63 So.3d at 839.

In addition to takings through physical invasions of land, a governing body’s regulatory action may also give rise to an inverse condemnation claim. This is called a regulatory taking and its existence depends greatly on the facts surrounding each circumstance. For a regulatory taking, a property owner must establish that (1) a government regulation goes too far and has, in substance, taken the owner’s property, and (2) any proffered compensation is not just. MacDonald v. Yolo County, 477 U.S. 340 (1986). The actual dispossession of property is not required for a regulatory taking; rather, a regulation placing limitations on land and having a negative economic impact on an owner may be sufficient enough for a valid inverse condemnation claim.

While a condemning authority will usually initiate eminent domain proceedings for the taking of private property, sometimes an unintended taking will occur without the government following the proper constitutional procedures. In that situation, the private property owner can seek just compensation by commencing an inverse condemnation action. It is recommended that you seek competent legal counsel if you believe you may have a valid inverse condemnation claim.

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