Inverse condemnation and your rights

The government isn’t officially taking your land. Unofficially, though, your property is being harmed. Let’s do something about it.

What the law says about eminent domain inverse condemnation and your rights

There are plenty of reports in the news of the Georgia Department of Transportation (GDOT) seizing, or condemning, property for public use through the process of eminent domain throughout the state. Perhaps it’s happened to you. If it has, then you probably know that the government is legally required to pay you fair market value for the property that it has “taken.”

But what happens if the government does something, or fails to do something, that effectively “takes” your property without going through the eminent domain condemnation process? Do you get compensated then?

Possibly, if you file an inverse condemnation (or reverse condemnation) action. Call the Georgia Eminent Domain Law firm today at 1-888-391-1339 for a free case evaluation.

What is inverse condemnation?

Inverse condemnation is the legal concept that entitles property owners to sue the government in order to recover the value of their property when the government takes it under eminent domain and fails to properly compensate them.

In inverse condemnation cases, the taking often occurs accidentally or indirectly:

  • An example of an accidental taking would be when GDOT causes accidental flooding to a property, but does not pay for damages.
  • An example on an indirect taking would be when a city builds a sewage plant next to your home, but does not compensate you in any way for any loss of property value.

Other times, the government simply takes or damages property without filing a condemnation action and without offering fair market value. For example:

  • When GDOT changes or abandons plans to condemn a property after damage has already occurred and expenses have been incurred
  • When the city builds a road and fails to properly acquire the necessary drainage easements and water is diverted onto private property
  • When a road is widened, and the city only offers to pay for the parking lot taken over but not for the value of the building or property that decreased in value because of the restricted parking

The Georgia Constitution establishes that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Georgia law states that any government entity that damages private property shall proceed as set forth in the eminent domain title of Georgia Code (O.C.G.A. § 22-1-8). And when this doesn’t happen, you may want to consider initiating an inverse condemnation lawsuit.

If your property has been damaged or taken by the government, and you have not been offered compensation, contact the Georgia Eminent Domain Law Firm today for a free case evaluation.

What is an inverse condemnation claim?

An inverse condemnation claim is the legal action that a property owner initiates to try to obtain compensation for property that was taken by the government. In the claim, or action, it is the property owner’s responsibility to prove that a taking has occurred and that fair compensation has not been paid.

Is inverse condemnation a taking?

No, inverse condemnation is not a taking, but it does involve a taking. A taking is when the government employs the right of eminent domain to take private property for public use and compensates the property owner. Inverse condemnation is the right of the affected property owner to seek compensation for the taking when the government does not follow eminent domain procedures and offer compensation.

Another way to look at this is to clearly define one of the major differences between eminent domain and inverse condemnation – i.e. the entity initiating the legal action. In eminent domain actions, the government initiates the legal proceedings, and in inverse condemnation actions, the property owner does.

Inverse condemnation is when the property owner files a lawsuit, not the government.

What causes inverse condemnation in Georgia?

Inverse condemnation can be caused by many things. In general, condemnation is caused by a government’s actions or regulations that negatively impact the value of your property – what makes it inverse condemnation is when the government does not follow eminent domain procedures, does not acknowledge responsibility for the damage, and does not offer you compensation for the damages done (or not enough compensation).

What is meant by a regulatory taking?

A regulatory taking is when the government’s non-physical actions result in a decreased property value or make the property unusable by the owner. Regulatory takings can be caused by laws, ordinances, restrictions, or conditions which affect or destroy a property’s use. For example, if the government passed a law that prohibited building on your property, you may be able to prove that this was a taking of your land because this law deprived you of economic use of the land.

The other type of a taking is a physical taking which occurs when the government encroaches on or occupies property for its own use. While not as common as regulatory takings in inverse condemnation cases, they can be more obvious to physically see, such as damage to property caused by pollution, water, deprivation of access, and land seizure.

Physical takings are damage or seizure of land/property, regulatory are restrictions of property.

What are the elements of an inverse condemnation case?

In inverse condemnation, the property owner bears the burden of proof. If you feel that the government has taken your property illegally by not following eminent domain process, you must be prepared to prove:

  • Ownership – you own the property allegedly taken
  • Participation – the government participated in a public project or enacted a regulation that negatively impacted your property
  • Damage – your property was substantially damaged, or taken
  • Causation – the damage was caused by the government taking

There are two major issues to be determined in an inverse condemnation case: 1) whether or not the government’s action has resulted in a taking of your property (which refers to the four conditions above), and 2) the amount of compensation to be paid, if there was a taking. If the court determines that a taking has occurred, the matter of compensation may be heard by a jury just as it would be in a direct condemnation action.

How do I file a lawsuit for inverse condemnation against the government?

If you want to try to hold GDOT accountable for taking your property without fair compensation, you may file an inverse condemnation complaint against GDOT with the Superior Court in the county in which the property is located. GDOT can respond by:

  • Agreeing to your claim and depositing an amount that it believes you are entitled to (you can always continue to pursue more compensation if you disagree with the amount)
  • Claiming that it does not owe you compensation

If the government continues to deny responsibility for damages to your property, you can proceed with an inverse condemnation lawsuit. We encourage you to talk to an inverse condemnation attorney to guide you through the process.

Why do I need an inverse condemnation attorney?

If you are filing an inverse condemnation claim in Georgia, an attorney can help you understand and follow this complicated process by:

  • Keeping track of deadlines and statutes of limitations
  • Filing necessary paperwork

An inverse condemnation attorney can also help you try to build the strongest possible case by:

  • Ensuring that the case meets certain legal standards
  • Organizing expert testimony
  • Representing you in court

The Georgia Eminent Domain Law Firm works on a contingency fee basis, which means that if we don’t get you any additional compensation over what the government has offered you, we don’t collect an attorney’s fee.2 Contact us today for a free case evaluation of your inverse condemnation claim.

Get a free case
evaluation today.

There are only a handful of attorneys in GA who practice eminent domain exclusively. And even fewer with DOT experience. That’s why it’s always worth it to get a free case evaluation.

Here’s how it works:

1) Tell us about your situation.

2) We research your property as needed, using DOT maps, our own technology, and experience to see the exact effects.

3) We let you know what we think a fair offer would be. This evaluation is free, and there’s no
pressure or obligation to hire us after.

But please don’t wait to act. Waiting can hurt your case, and the cost is the same: free.

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