Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 4th, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 4th, 2013 Update

Real 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.

Followers of 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.

Each fully 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 laymen alike.

Whether you follow real estate law professionally or as a hobby, you'll find something new and useful every week in Real Cases in Real Estate.

Updates 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.

A 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.

Carolina Convenience Stores v. City of Spartanburg, 2012 S.C. App. LEXIS 126 (May 9, 2012) [enhanced version available to subscribers].


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