Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
insurance, public utilities, mechanics liens, construction defects, adverse
possession, foreclosure and eviction, divorce and marital property rights,
tenants' rights, and more. Real Cases in Real Estate uncovers the
unpredictable, amusing, and sometimes outrageous disputes between next-door
neighbors, contractors and homeowners, condo boards and residents, real estate
brokers and homebuyers, and zoning administrators and developers.
cited case summary highlights the essential law of the case and explains the
principal legal theories and concepts relevant to the outcome. Plain language
treatment makes Real Cases in Real Estate accessible to lawyers and
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
for the Week of February 4th, 2013
Damage to Private Property Caused by Police Enforcing
Criminal Laws Does Not Support Owner's Claim of Inverse Condemnation.
South Carolina decision explains the meaning and application of inverse
condemnation and simultaneously suggests property owners keep their
properties well insured against damage. Jimmy Johnson, fleeing from police,
took an employee hostage at the Carolina Convenience Store and held her for 13
hours. The Spartanburg police attempted to negotiate with Johnson to release of
the hostage, but were unsuccessful. Finally, they used a bulldozer to breach
the building. The destruction of the store wall revealed both Johnson and his
hostage, and a sharpshooter shot Johnson in the shoulder, ending the encounter.
The hostage was unharmed.
The property owner sued the City of Spartanburg based on the
damage to the building. He claimed "inverse
condemnation," an action by which an owner attempts to establish that a
government entity has taken his property. The owner's theory was that the
destruction of his property was a taking entitling him to compensation. The
circuit court granted summary judgment to the City of Spartanburg, which
Carolina Convenience Store appealed.
The appeals court reviewed the theory of inverse
condemnation and cases from other states. In upholding summary judgment, it
reviewed the required elements for an inverse condemnation: (1) affirmative
action of a government entity; (2) conduct amounting to a taking; and (3) the
taking is for public use. The City did not physically appropriate the convenience
store, despite the damage caused. The more important distinction is the
distinction between the exercise of eminent domain and the exercise of police
power. The court concluded that the exercise of police power, to protect the
public welfare, does not constitute a taking of public property for private
use. As the court put it, "eminent domain ... never has been applied to require a
public entity to compensate a property owner for property damage resulting from
the efforts of law enforcement officers to enforce the criminal laws."
The rationale for this rule is that law enforcement officers
must be able to respond to emergencies that endanger the public without fear of
liability for property damage or prospect of disciplinary action.
There is another reason that compensation for taking of
property under eminent domain was found inappropriate here. The South Carolina
Constitution requires compensation be made before
the taking of private property for public use. Because the owner's claim
for compensation based on inverse condemnation was made after the store was damaged by law enforcement, the court felt the
Constitutional provision was inapplicable.
Stores v. City of Spartanburg, 2012 S.C. App. LEXIS 126 (May 9, 2012) [enhanced version available to lexis.com subscribers].
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