2023

Screenshot 2023-03-03 at 08-06-54 Robert Thomas inversecondemnation.com on Twitter

Let’s say you know nothing else about an appeal except it is being decided by the U.S. Court of Appeals for the Second Circuit, and the case is a constitutional challenge to rent control. What’s your best guess about the outcome (the district court dismissed for failure to state a claim)?

When the Second Circuit issued its summary order in just such a case last week — a challenge to the “Housing Stability and Tenant Protection Act of 2019” — we decided to undertake a little unscientific poll to see whether others out in the Twitterverse predicted as we did.

Looks like so. Yes, the sampling size was small, and the respondents were only those who voluntarily offered their thoughts. But 95% accurately predicted that the property owners would lose, as the Second Circuit indeed held in an appellate court’s version of “laughing heartily” at an appellant’s arguments:…

Continue Reading One Guess What The Second Circuit Did With A Takings Challenge To Rent Control

Today’s post is by our Pacific Legal Foundation colleague Kady Valois, writing about a recent Federal Circuit Rails-to-Trails takings case, Behrens v. United States, No. 22-1277 (Feb. 13, 2023).

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How The West Was Won: Easements!

by Kady Valois

There’s a saying that the west was won by pioneers, settlers, and adventurers.

And while that may be somewhat accurate, what’s clearer still is that the west — at least the west we know today — was built and developed because of railroads. We owe a lot to railroads because this nation was built by the coal engines that carried steel, food, and people to areas never previously explored by Americans. Many of these railroads were built on easements or rights-of-way on private property, subject to the fee owner’s reversionary interest: should the easement ever not be used for railway purposes, the property is supposed to revert…

Continue Reading Guest Post – Kady Valois, “How The West Was Won: Easements!”

Remember that case from a couple of years back, where the Supreme Court, by a tantalizingly close vote, declined to grant a cert petition seeking review of an Illinois decision that preventing future blight was a sufficiently public use to support a redevelopment taking? 

A law student at Catholic U. law school recently made a presentation on the case and the issues as part of the Student Scholars Series, and the law school has kindly made the video available. More here.

We think it is fantastic both that law students are examining these issues, and that the law school encourages and promotes their work. It gives us comfort for the future of the profession, and the Dirt Law Bar.

Well done, Mr. Tocchio!Continue Reading Catholic U Law School Student Scholar: “Eychaner v. City of Chicago: Repercussions after The Supreme Court refuses to take up a Takings Clause Reconsideration”

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Here’s the merits brief, filed yesterday in the above-depicted Court by our law firm colleagues, headed by Counsel of Record Christina Martin in Tyler v. Hennepin County, No. 22-166, a case and an issue we’ve been following closely. This is the one, where, as recounted in the petition:

Hennepin County confiscated 93-year-old Geraldine Tyler’s former home as payment for approximately $15,000 in property taxes, penalties, interest, and costs. The County sold the home for $40,000, and, consistent with a Minnesota forfeiture statute, kept all proceeds, including the $25,000 that exceeded Tyler’s debt as a windfall for the public. In all states, municipalities may take real property and sell it to collect payment for property tax debts. Most states allow the government to keep only as much as it is owed; any surplus proceeds after collecting the debt belong to the former owner. But in Minnesota…

Continue Reading Property Owner’s SCOTUS Merits Brief: “Under no circumstances can government have an unbounded ability to confiscate entire properties of any size for even the most minimal tax debts.”

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The Chief Justice Wants YOU to attend this webinar.

We try to remember anniversaries and birthdays. Some welcome, like the recent 100th of Pennsylvania Coal v. Mahon. Some maybe not so welcome, like this, the 200th anniversary of Johnson and Graham’s Lessee v. M’Intosh, 21 U.S. (7 Wheat.) 543 (Feb. 28, 1823).

That’s the decision in which the Supreme Court, in an opinion authored by Chief Justice John Marshall (noted above, giving us the finger), held:

Upon this principle the North American Indians could have acquired no proprietary interest in the vast tracts of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. According to every theory of property, the…

Continue Reading Happy (?) 200th Anniversary, M’Intosh

Would not have guessed that The Fenwicks, described as “America’s only Afro-Celtic Yiddish Ska band,” and compared to “Oingo Boingo on steroids” would have a song about eminent domain & property rights, “Preeminent Domain.”

But there it is. Check it out. Continue Reading The Fenwicks, “America’s only Afro-Centric Yiddish Ska Band,” With The Property Rights Anthem, “Preeminent Domain”

Screenshot 2023-02-23 at 11-13-54 Toward Principled Background Principles in Takings Law

Check this out, a new article co-authored by a federal judge’s law clerk and lawprof Lior Strahilevitz (Chicago). With the title, “Toward Principled Background Principles in Takings Law” are we going to read it? You bet. (Unlike a lot of new scholarship that we post here, we read this one immediately.)

Here’s the Abstract:

Blunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending…

Continue Reading New Article: “Toward Principled Background Principles in Takings Law” (Strahilevitz & Hansen)

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If you are in Honolulu, please join us on Wednesday, March 8, 2023, 4:30-5:30 p.m. at the University of Hawaii Law School for Professor Thomas Mitchell on “Heirs’ Property and the Uniform Partition of Heirs Property Act: Challenges, Solutions, and Historic Reform.”

Our U.H. Land Use class is attending to learn more about “heirs’ property” (described as “the biggest problem you’ve never heard of“), and so should you. Yes, Hawaii has adopted the Uniform Partition of Heirs’ Property Act and we have followed this issue for some time, but if you didn’t know about this, now is your chance to catch up.

Here are the details from the U.H. newsletter:

Carlsmith Ball presents the 2023 Distinguished Gifford Lecturer in Real Property, Thomas W. Mitchell. Mitchell is a professor at Boston College Law School, where he holds the Robert F. Drinan, S.J. Endowed Chair and serves as the Director of the Initiative on Land, Housing & Property Rights. He is a national expert on property issues facing disadvantaged families and communities and has published leading scholarly works addressing these matters.

In 2020, Professor Mitchell was named one of 21 recipients of the MacArthur Fellowship in recognition of the substantial impact his professional work has had in assisting disadvantaged farmers and property owners, people who are disproportionately but not exclusively African American and other people of color. He is the only lawyer in his MacArthur Fellowship class. Please join us for this Distinguished Gifford Lecture; a light reception is to follow from 5:30 – 6:30 p.m.

Come, join us for this compelling session.
Continue Reading Join Us On Wed March 8 at 4:30pm For 2023 Distinguished Gifford Lecture In Real Property – Prof Thomas Mitchell On “Heirs’ Property & the Uniform Partition of Heirs’ Property Act: Challenges, Solutions, & Historic Reform”

As part of the nationwide reaction to Kelo v. New London, Indiana adopted a statute that in some cases requires the condemnor to compensate property owners at not just fair market value, but at 150% of FMV.

As far as we can tell, the Indiana Court of Appeals’ opinion in Guzzo v. Town of St. John, No. 21A-PL-2213 (Jan. 19, 2023) is the first appellate case applying that statute, or any similar law. Read on.

The statute at issue, Ind. Code § 32-24-4.5-8, sets compensation for the taking of “residential property” at 1.5x the fair market value:

Sec. 8. (a) Notwithstanding IC 32-24-1, a condemnor that acquires a parcel of real property through the exercise of eminent domain under this chapter shall compensate the owner of the parcel as follows:

….

(2) Subject to subsection (b), for residential property:

(A) payment to the owner equal to one hundred fifty…

Continue Reading Indiana App: This House Is “Residential Property” Qualifying It For The Statutory 150% FMV Enhancement

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The International Right of Way Association‘s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.”

And what is really nice is that they make the report available.

Here’s the latest.

We’re posting it here because we’re one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn’t contain a lot of fluff. Just what you wanted.Continue Reading IRWA’s Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2022)