Inverse Condemnation Anomaly: Why must Property Owner Prove a "Public Use?"

When a state agency seeks to condemn property, it must prove, among other things, that it has an appropriate public purpose in condemning it. Under the Utah Constitution, Article I Sec. 22, “Private property shall not be taken or damaged for public use without just compensation.” (emphasis added). Property is taken for the public use "when the taking is for a use which will promote the public interest and tend to develop the resources of the state." Utah Law of Eminent Domain p. 6 (2008).   The Utah constitution and statutes make it clear that public purpose is required and what the public purposes are. Utah Code Ann. § 78B-6-501 gives an approved list of public purposes that justify an eminent domain action by a state agency (other statutes expand this list, such as 72-5-204). If a state agency cannot show that its purposes fall under one of these categories, its eminent domain action may fail.

When a state agency takes or damages property informally, through regulation or by taking possession of property inappropriately, an individual may bring an action for “inverse condemnation” of his property. The world “inverse” does not mean that the person is taking the state’s property by condemnation. Rather, it refers to the fact that the state has taken the property already, but not paid just condemnation, so the property owner becomes the plaintiff in an action to prove that a condemnation has happened, where, in the usual, and inverse, circumstance, the state would be the plaintiff seeking to condemn. It would make sense that when an owner has been informally taken by government action or regulation, that in an inverse condemnation action, the state would bear the burden of showing its regulation or action had a public purpose, notwithstanding its status of defendant. Surely, the state cannot have acted for a private purpose. Nevertheless, the case law strangely requires the property owner to prove that the regulation had a public purpose. In Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1246, the court held that "inverse condemnation damages are limited to those necessarily arising out of the public use."

The court continued to explain, saying, "such damages must 'grow out of' a public use rather than being merely the result of a negligent or wrongful government act." Id.

Here the court is explaining that the inverse condemnation claim is not a cure for all bad government action that harms property. It is a narrow cause of action that is only available when the government is taking for a public use. If the government negligently damages your property, you may (or may not) have a cause of action against the government, or the agent of government, that harmed you.

 

Why a Landlord has no Cause of Action for Trespass.

Consider the following situation. A landlord “L” leases to a tenant “T” who surreptitiously invites Deadbeat to live with him. T’s lease is up and he vacates but Deadbeat does not. One week later L arrives with a police officer to boot out Deadbeat who, he claims, is a trespasser. Can he do so? No. The cause of action for trespass to real property is available to those who “have a property… in soil, and actual possession by entry.” Blackstone, William Commentaries Book 3, Chapter 12. And “before entry and actual possession, one cannot maintain an action in trespass though he has the freehold in law.” Id. The party that could have an action in trespass is T who had “actual possession by entry.” The landlord has not reentered so he has only a right to rents, not to possession. In order to obtain possession again, the person currently in possession must be evicted through the unlawful detainer process. However, a savvy landlord will require the tenant to assign to the landlord the right to enforce the tenant’s right of possession against Deadbeat. But another obstacle faces the landlord: is Deadbeat a trespasser at all? Perhaps not. A trespasser is one who “break[s] his close.” Id. Deadbeat broke no “close,” but was invited onto the property by one who had the “right of possession.” Under the facts presented it is unknown whether or not that right was ever revoked. So even if the landlord obtained an assignment of the right to sue for trespass, an action for trespass may not lie until Deadbeat is invited to leave and refuses to do so. A landlord’s proper remedy is an action for unlawful detainer and eviction. In American law, the landlord is generally prohibited from regaining “actual possession by entry” without the state’s assistance. Once a judgment of eviction is obtained, the sheriff can come and help the landlord, if necessary, “reenter” and take actual possession of the property. Visit our firm: www.mountainwestlaw.com