Physical Invasion | Yee

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CornercrossingThe opinion gets that diagrams are good. 

Here’s the latest in a case we’ve been following. 

A case that should end up in Property casebooks (it will almost certainly make an appearance in our William and Mary Eminent Domain and Property Rights course in the fall).

Dirt lawyers know the “ad coelum” doctrine (owner owns airspace, and down to Hades) has a lot of practical challenges in the modern world. The Supreme Court decided a while back in United States v. Causby, 328 U.S. 256 (1946) that no, it isn’t violating the surface owner’s property rights for aircraft to fly high up. In the modern world, the owner can’t reasonably expect to be compensated for invasions into the coelum, except when the invasion is down fairly low, and likely to cause a problem on the surface. The doctrine has some continuing vitality, especially in that all-to-frequent…

Continue Reading CA10 On Causby, Open Range, And Corner Crossings: Owners Have A Right To Exclude, But Not If Doing So Fully Encloses Public Lands

Here’s the latest in a case we’ve been following. This is GHP Management Corp. v. City of Los Angeles, No. 24-435, the cert petition which asks whether a local ordinance which allowed non-paying tenants to remain in the lessor’s property is a physical taking, or merely the regulation of the lessor/lessee relationship under the Yee theory, which posits that once an owner voluntarily rents property to a tenant, the government then allowing that tenant to remain rent free isn’t facilitating an unauthorized physical occupation, but rather is merely a regulation of the existing lessor/lessee relationship. 

The petitioner property owner has filed its cert stage Reply, which means that all the briefing is in, and next up is for the Supreme Court to set the conference date. Here’s the summary of the issues from the Reply:

Respondents prefer a world where government enjoys absolute immunity from…

Continue Reading Eviction Moratorium As A Physical Taking All Teed Up

Property_rights_and_the_roberts_court_Agenda_

Register now and plan on joining us on Thursday, February 27, 2025 at the U.C. Berkeley Law School for a one-day conference: “Property Rights and the Roberts Court: 2005-2025.”

Here’s the agenda. Here’s a description of the program:

For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.

In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.

We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between…

Continue Reading Join Us: “Property Rights and The Roberts Court: 2005-2025” (Feb. 27, 2025, UC Berkeley Law School)

At first glance, it might seem like there’s a lot there in the U.S. Court of Appeals’ opinion in Becker v. City of Hillsboro, No. 23-3367 (Jan. 7, 2025).

After all, the city’s prohibition on new private wells and another requirement that newly built homes connect to the city’s water system seems a bit arbitrary (at least the opinion doesn’t give a lot of detail why, other than “the city said so”). And the opinion evaluates a Lucas wipeout, a physical invasion, a Penn Central ad hoc taking, and a Nollan/Dolan claim. Even a Murr denominator issue. This case could have been a good vehicle to examine those questions in more detail that many courts do.

But after taking a dive in, our initial impression that this case would provide a lot of insight — or even food for deeper thought — didn’t pan out. Take a…

Continue Reading CA8 Misses An Opportunity For Penn Central Clarity: No Taking When City Bans New Private Wells, Requires City Water

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • 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

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Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

Check out the opinion of the Court of Federal Claims in Nix v. United States, No. 23-704C (Dec. 11, 2024). Fascinating stuff.

We post it here not because it breaks new ground, but due to the subject matter of the lawsuit: the alleged taking of a film that captures (in part) the assassination of President Kennedy in 1963.

No, this isn’t the famous Zapruder film, which was also the subject of a well-known takings claim. This case involved the “Nix film,” taken that fateful day “from an angle opposite the more famous Zapruder film. The Nix film thus captures Abraham Zapruder and the area around him, where some claim a gunman other than Lee Harvey Oswald was hiding.” Slip op. at 2. 

Nix licensed the film to UPI, which “unbeknownst to him … transferred the Nix film to the United States House of Representatives Select…

Continue Reading CFC: Complaint Adequately Pleaded Physical Taking Of JFK Assassination Film

The latest state supreme court decision involving a takings challenge to a statute permitting precondemnation entries, this time from Iowa.

In Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Nov. 22, 2024), the Iowa Supreme Court concluded that, at least on its face, Iowa’s entry statute for hazardous liquid pipelines, which permits entries for land surveys and requires the payment of actual damages, is not a taking of an owner’s right to exclude:

Kasischke recognizes that section 479B.15 requires “[t]he pipeline company [to] pay the actual damages caused by the entry, survey, and examination” but argues that the mere entry onto his property to conduct the survey is itself a taking of his right to exclude all others, for which he is also entitled to just compensation. Kasischke’s constitutional claim fails because the statute did not take away a property right that he owned. Rather, he has…

Continue Reading Iowa: Statute Permitting Precondemnation Surveyor Entry Is “pre-existing limitation on … title”

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

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

Here are the cases and other materials we discussed in today’s Section of State & Local Government Law Land Use group meeting on takings:

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Continue Reading Links From Today’s ABA Land Use Session

Untitled Extract Pages

Here’s the latest in a case we’ve been following. This morning, in this Order, the Supreme Court denied cert in two cases which seemed to have a good chance at a grant, on two pressing issues which have divided lower courts, the physical occupation in tenancies (aka Yee), and the nature of the Penn Central takings test. Only Justice Gorsuch would have granted.

Here are the Questions Presented:

New York’s Housing Stability and Tenant Protection Act of 2019 transforms a temporary rent- regulation system into a permanent expropriation of vast swaths of private real estate, without just compensation, in the name of “affordable housing.” Among other things, the Act prohibits owners—even of small and midsized apartment buildings like Petitioners—from reclaiming rental units for their own personal use, and grants tenants a collective veto right over condo/co-op conversions. As Justice Thomas has observed, the constitutionality of regimes like New York’s…

Continue Reading SCOTUS Declines To Review NYC Rent Control Challenge