Under eminent domain laws, the condemning authority should declare a taking when obtaining private property without consent from the owner. The taking invokes the owner’s legal rights to pursue additional compensation. Unluckily, for many reasons, the condemning party might take property rights or property from the owner without declaring a taking and starting an eminent domain procedure. This stops the property owner from filing for compensation. In this case, the owner can file for an inverse condemnation case.
Under the inverse condemnation, the owner has the legal right to stand in front of the judges and explain that the doings of the condemning authority resulted in obtaining the property. Then, the judge will declare that obtaining the property has been done, offering the owner the capability to proceed to the damages stage of their lawsuit where they can pursue claims of compensation.
Physical Taking
Seldom will the condemning party ignore to declare a taking and start an eminent domain process when acquiring a physical asset like part of the owner’s business parking space or the front yard. In most cases, the condemning will take all the property rights like removing or restricting access. Taking property rights like access is handled as physical takings in eminent domain law. So, it requires payment of compensation.
Regulatory Takings
Regulatory taking is a common inverse condemnation condition that arises when a government authority enacts a type of rule that limits owners to use their properties. Luckily for a property owner, the court has taken notice of this situation, and now they offer owners the chance to go to court in case this occurs. If regulatory takings limit the use of your property, this means you won’t have the property. I that case, you can file for an inverse condemnation case to initiate the eminent domain procedure.
What Are the Tests For The Regulatory Taking?
Some tests have been put in place by the supreme court concerning the regulatory takings. They include:
Lucas Test
When a regulation limits all the property utilization, it means a Lucas taking or a total taking took place. If the property owner has a total taking, they are entitled to its full value before these regulations are enforced.
Penn Central Test
A partial taking occurs under this Penn central test. With this, the property owner can use the property even when the regulation has been enforced. The property owner will have a valid regulatory taking case if this happens.
This section of the law is complex and complicated, and it entails some sophisticated parts of litigation. So, it is essential to hire a qualified eminent domain lawyer to help you with the case.
