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Today we have another guest post by New York colleague Jennifer Polovetsky, who writes about trade fixtures in New York. Lots of good stuff for those of us not in NY as well. Thanks to Jennifer (and to the New York Law Journal) for allowing us to republish her intriguing piece.

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Trade Fixtures In New York Eminent Domain Cases – What Qualifies and How Are They Valued?

by Jennifer Polovetsky

In New York, the eminent domain laws require that compensation be made to a business tenant for the loss of its compensable trade fixtures in a separate condemnation award. A business tenant is entitled to receive compensation for its “chattel” (i.e., any machinery, equipment, and/or other legally compensable installations that are used for its business purposes) separately from any compensation offered to the landlord/owner of the property for the seizure of their real estate. See Eminent Domain Procedure

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Continue Reading Guest Post (Jennifer Polovetsky): “Trade Fixtures In New York Eminent Domain Cases – What Qualifies and How Are They Valued?”

Thanks to lawprof Donald Kochan for the heads-up: the “Word of the Day” in today’s New York Times is … “eminent domain.”

Defined by the piece as:

“the right of the state to take private property for public use; the Fifth Amendment that was added to the Constitution of the United States requires that just compensation be made”

Ugh. The “right?” No mate, it’s a sovereign power, not a right.

The piece then challenges the reader:

Can you correctly use the word eminent domain in a sentence? Based on the definition and example provided, write a sentence using today’s Word of the Day and share it as a comment on this article. It is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun.

OK, we’ll have a go. How’s this for…

Continue Reading NYT Word Of The Day: “Eminent Domain”

2025 San Diego

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here’s a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to Prove “Too Far”
  • Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
  • Kelo at Twenty: What Changed, What Didn’t, and What’s on the Horizon
  • Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land’s Inverse Condemnation Taking
  • Ethics: Guiding the Trolley: Perspectives on Professional Ethics in

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Continue Reading Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don’t Miss Out!)

Access
We like it when courts include photos and maps.

The Indiana Supreme Court’s ruling in State of Indiana v. Franciscan Alliance, Inc., No. 245-PL-118 (Oct. 31, 2024) isn’t all that surprising. After all, the State’s eminent domain action did not take access to the undeveloped property, and the owner was not entitled to compensation for the change in traffic flow brought about by the closure of an intersection. This increased the “circuitry of travel,” but did not cut off the parcel.

Here’s how the court framed the issue:

Here, there is no question that the State’s condemnation of Franciscan’s 0.632-acre strip of land is a taking requiring just compensation. Likewise, it is indisputable that this condemnation amounted to a taking of SCP’s easement rights over that strip of land. But the record confirms that the State has already paid compensation for those easement rights. Thus, the only question…

Continue Reading Indiana: No Compensable Property Right In Traffic Flow; No Compensation For Impairment Of Access

Here’s a recently-filed cert petition which raises two questions about the constitutional calculation of just compensation.

Here are the Questions Presented:

A county unquestionably used real property that denied access to private property and allowed the private property owner to restore the denied access at the owner’s own expense, without county reimburse- ment. Although at trial a jury awarded substantial damages, the appellate court would eventually reduce damage to zero. The questions presented are:

1. When the government undisputedly takes a real property right, does a court have an independent duty to ensure that just compensation is more than $0?

2. Where there is a temporary taking of property rights, is it required under the Fifth Amendment to measure just compensation using the rental value of the property for the time it is taken?

Follow along on the Court’s docket here.

Petition for a Writ of Certiorari, CBS MN …

Continue Reading New Just Comp Cert Petition: Is $0 Just Compensation Constitutional?

Heads up: the second episode of the rebooted Eminent Domain Podcast is live, with host Bobby Debelak and guest law professor Ilya Somin. Here’s the description of this ep:

Professor Ilya Somin of George Mason University and the Cato Institute discusses his work in drafting amicus papers in the Kelo case, working with Jane Jacobs, writing a book on Kelo (The Grasping Hand) a decade after the decision, and his current work on the costs of exclusionary zoning. Throughout, Bobby and Prof. Somin discuss the common ground that otherwise-differing philosophies find in property law.

We’re not going to post up every new episode (you really should subscribe and get notifications yourself), but we figured while the podcast was getting its sea legs back it couldn’t hurt to remind you. Check it out. Continue Reading New Ep, Eminent Domain Podcast: Lawprof Ilya Somin

As we hinted at a couple of weeks ago, we have some good — nay, great — news: the Eminent Domain Podcast, retired earlier this year by its originator Clint Schumacher, is back with a new host and a slightly new title: “Come and Take It: The Eminent Domain Podcast.”

Bobby Debelak has stepped into the host’s chair. As you might be able to tell from the new title, Bobby is also a Texas lawyer.

Here’s the first episode, where Client figuratively hands the baton to Bobby. If you haven’t already subscribed to the feed, now’s the time so you don’t miss an episode. Available on all pod feeds, so be sure to get subscribed.

Are you as excited about this as we are?Continue Reading The Eminent Domain Podcast Is Back!

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We appreciate it when courts include photos and maps in opinions.

A quick one from the Colorado Court of Appeals on an issue of first impression in that state.

In City of Westminster v. R. Dean Hawn Interests, No. 23CA0315 (Aug. 1, 2024), the court concluded “for the first time, that an executory contract for the purchase and sale of land is relevant and admissible, at the district court’s discretion, as evidence of the value of the condemned property.” Slip op. at 1.

Short story: the city sought to take RDHI’s a 37-ish acre portion of its 105-ish acre land to build a water treatment facility. The property is zoned for mixed-use development, and everyone agrees the highest and best use was for large-scale mixed-use development (including retain, office, and multifamily housing). Slip op. at 4. In addition to just comp for the property taken, RDHI sought severance damages…

Continue Reading Colorado App: Executory Contracts Admissible To Prove Value Of Condemned Property

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Yes, the mysterious ducks remain — and seem to have multiplied.

It’s that time of the year again. Fall’s-a-coming, and that means that starting today, we’re back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:

  • Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
  • Land Use Controls (an especially hot topic at the moment)

The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law — it’s really interesting, and a good place to make your way in the practice, and law students recognize that.

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We don’t use $400 casebooks in either class.

Time to jack back into the (takings and land use) Matrix.

6a00d83451707369e20240a476d216200c-800wiContinue Reading Back To School For Dirt Law @ William & Mary, Season VII

Just compensation

Just a few posts ago, we put up the Louisiana Supreme Court’s opinion in a case where property owners obtained a final inverse condemnation judgment ordering the New Orleans Sewer Board to pay just compensation.

Then…crickets. The sewer board did not satisfy the judgment. It relied on a provision in the Louisiana Constitution that says that the state and local governments don’t need to pay civil judgments except when they want to.

The Louisiana Supreme Court didn’t see it that way, and held that just compensation is “self executing” and that paying it is a ministerial duty, meaning that no statutory authorization is needed, and mandamus to compel payment is an available remedy for non-payment.

Now, the sewer board has asked the court for a do-over. In its motion for rehearing, it asserts that that earlier federal litigation is res judicata and already resolved the issue (although that…

Continue Reading Govt: We Were Really Really Really About To Pay…Until You Forced Us To Pay! Sewer Board Seeks Rehearing In Self-Executing Just Comp Case