The Constitution Protects Private Property Owners

By Steven A. Blum   |   January 25, 2018

I live on Glen Oaks Drive, 200 yards from San Ysidro Creek. On January 9, a torrent of mud and giant boulders tore through my neighborhood and destroyed dozens of homes. Tragically, three of my immediate neighbors lost their lives, and after staying through the week my family and I followed the mandatory evacuation order.

As our community begins to pick up the pieces, where will we get the enormous resources required to rebuild our homes and lives? As someone who has practiced landslide law for the last 30 years, I will try to answer this question in a series of articles published here.

This first article is about inverse condemnation, a constitutional remedy for damage to private property. Most people are familiar with the concept of the government taking private property for a public use through eminent domain (or “direct” condemnation), which ends with a payment of compensation to the property owner.

Inverse condemnation is less well-known, but it’s the flip side of the same legal coin. It describes the case where the government takes or damages a property but fails to pay the property owner, who has to sue the government to recover compensation. The only difference between a direct and inverse condemnation is who starts the lawsuit.

Inverse condemnation is not governed by the rules that govern rights and responsibilities between private parties. It is based entirely on rights enshrined in the California and United States Constitutions, which prohibit private property from being taken or damaged for public use without the payment of just compensation. While negligence law is based on determining who is at fault, inverse condemnation law is not based on anyone’s fault.

The California Supreme Court established the general rule of liability without fault in inverse condemnation cases in the landmark decision of Albers v. County of Los Angeles. In that case, a County of Los Angeles road-building activity triggered a landslide that damaged the plaintiffs’ property. The court found that the county was liable for inverse condemnation even though it was not negligent.

Any property damage caused by government improvements is compensable under the Constitution, whether foreseeable or not, as long as the property owner demonstrates a cause-and-effect relationship between the public works (e.g., roads, creeks, sewers, drainage paths, water mains), and the incident giving rise to the property damage.

The purpose of inverse condemnation is to distribute throughout the community the loss inflicted upon the individual by the construction, maintenance, or operation of public improvements. The constitutional mandate requires the public to pay for the true costs of a public project – not just the direct costs of labor and materials, but the damage to private property that the public project substantially causes.

The constitutional guarantee of just compensation is designed to bar the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking. For example, while a water main is socially beneficial, there is no reason why the economic cost incident to the expulsion of water from the water main should be borne by the adjoining landowners, rather than by the government agency undertaking such projects.

Inverse condemnation is, to a remarkable degree, formulated almost entirely by courts across the state in hundreds of sometimes contradictory decisions over the last 150 years, with which few lawyers or even judges are familiar. The California Law Revision Commission (the state agency responsible for reforming laws) has called inverse condemnation one of the most complex areas of California law.

There are plenty of traps for the unwary. The roadmap to recovery is a long and twisted one and success is not guaranteed, as shown by the experience of the residents of La Conchita, who lost their case against the County of Ventura. The involvement of public works does not always mean there is inverse condemnation liability.

For example, if a water main breaks in the ordinary course of its operation, then there could be inverse condemnation liability. However, if someone accidentally puts too much pressure on the water main or hits it with a sledgehammer, then the government is probably not liable.

While the law has some clear and established features, inverse condemnation can be difficult for an individual or business to navigate and results can vary significantly. Inverse condemnation is inherently cross-disciplinary, involving constitutional law, tort law, property law, insurance law, water law, and earth movement law, among others. An integrated team of experienced technical experts, including geologists, soils engineers, hydrologists, appraisers, and structural engineers, are necessary to successfully prosecute such cases.

Further, the process involves suing the government, which is complicated by requirements such as the need to make administrative claims before initiating tort litigation. (The claim is not needed for an inverse condemnation cause of action, because it stems from a constitutional right, not a statutory one). The experience level of the inverse condemnation lawyer will be critical in developing case strategy and assembling the team of experts. The merits of each inverse condemnation claim depend on the specific facts and exceptions to general rules sometimes apply. 

In the next article in this series, I will discuss civil procedure – the viability of pursuing class actions and other forms of collective litigation in the mudslides’ aftermath, as well as some other avenues of recourse that may be available in individual circumstances.


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