Inverse Condemnation

Yes, the government sometimes takes or damages property for public use WITHOUT following the procedures set forth by law for use of the power of eminent domain! Instead of filing a lawsuit in eminent domain, the government acts first without filing such a suit and without paying Just Compensation to the owners for what the government has done.

When this happens, the judicial remedy is an inverse condemnation lawsuit. In the usual eminent domain situation (sometimes called “direct condemnation”), the government as plaintiff files suit to acquire property, using the legal procedures for eminent domain, and naming as defendants those who have interests in the property acquired.

An inverse condemnation case, however, is somewhat the opposite. In an inverse case, those with interests in the property file an inverse condemnation lawsuit as plaintiffs against the government as defendant. The parties are inverted (hence, “inverse” condemnation).

California’s eminent domain statutes lay out procedures and principles applicable to eminent domain direct condemnation cases. However, the law of inverse condemnation has been left in California primarily to “judicial development” not statute. This means that, while many of the eminent domain direct condemnation procedures and principles are imported into inverse condemnation cases, judges decide which ones.

There are some differences in statutes that are outside of the eminent domain direct condemnation statutes. For example, California Code of Civil Procedure 1036 authorizes an award of attorney’s fees, litigation, appraisal and expert expenses to plaintiffs who prevail against the government. The direct condemnation statutes limit or eliminate entirely any right to such awards.

Likewise, the two types of condemnation have been treated differently in “judicial development” by California judges. Recently, for example, one lower appellate court decided that a motion procedure available in direct eminent domain cases should NOT be used in inverse condemnation cases. This was done even though a prior decision by another appellate court held exactly the opposite. (Weiss v. People ex rel. Dept. of Transportation (2018) 20 Cal.App.5th 1156 [disagreeing with Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029].)
Almost certainly lead this will eventually induce the California Supreme Court to accept review of a case in order to resolve the disagreement among the lower appellate courts, and in fact, a petition for such review has been filed in Weiss.

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