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Texas Inverse Condemnation

Apr 16, 2021 | Eminent Domain

Government entities use the power of eminent domain to condemn private property for a public use. Taking private land requires the government to pay landowners just and adequate compensation. When the government fails to do so, the law allows the injured property owner to file an inverse condemnation Texas claim.


What is Inverse Condemnation?

In an inverse condemnation proceeding, the plaintiff is seeking compensation for the government’s taking or damaging of private property for a public use. A “taking” occurs where a government entity either seizes or deprives the owner of the property’s free use and enjoyment.

Under Texas law, the government is required to follow eminent domain procedures before taking private property for a public use. When taking private property, the government must pay the owner just compensation. Inverse condemnation Texas is similar to an eminent domain proceeding but the owner rather than the government initiates the claim to recover compensation equal to the value of the property that was taken or damaged.


Inverse Condemnation and the “Takings” Clause

Both the U.S. Constitution and the Texas Constitution include a “The Takings Clause.” The Fifth Amendment of the U.S. Constitution states in relevant part: “nor shall private property be taken for public use, without just compensation.” Article I, Section 17 of the Texas Constitution provides that no “person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”

A taking is generally either a physical or regulatory action. A physical taking involves the government physically appropriating or trespassing on private property. We explore regulatory takings in more detail below. Under the Takings Clause, the government must pay the owner adequate compensation for his or her property.


Elements of a “Takings” Claim

Under Texas law, the basic elements for a takings claim requires the plaintiff to show:

  • Intent
  • Causation
  • Public Use

To prove intent, the plaintiff must demonstrate that the government entity knew that the taking would cause harm or that harm was substantially certain to result. Causation means that the taking resulted in damage to the property. And finally, the landowner must show that the government’s taking was not for a public use.

As a general rule, a public use is one that benefits the public at-large. In the wake of the U.S. Supreme Court’s decision in Kelo v. City of New London, a landmark case involving the condemnation of private property for the purposes of economic development, Texas adopted some new restrictions. Under Chapter 2206 of the Texas Government Code, the government cannot take private property if:

  • The taking “confers a private benefit on a particular private party;”
  • The taking involves a public use that is “merely a pretext to confer a private benefit on a particular private party;” or
  • The primary purpose of the taking is “economic development” or to boost tax revenues.


Common Types of Inverse Condemnation Claims in Texas

Most inverse condemnation Texas cases involve the following types of claims:

  • Physical appropriations.
  • A regulatory taking that deprives that owner of all economically viable use of the property.
  • A regulatory taking that unreasonably interferes with the landowner’s enjoyment of the property.
  • An exaction. With an exaction, the government requires the landowner to grant development concessions or pay money in exchange for an approval or permit.


How is Inverse Condemnation Initiated in Texas?

An inverse condemnation Texas claim is initiated by a property owner against the government. The owner seeks to recover the value of the property that was taken even though there was no formal eminent domain case filed by the government. Note that monetary compensation is the only form of remedy in an inverse condemnation Texas case. In other words, if the property owner wins the inverse condemnation case, he or she does not get the property back.


What is Regulatory Taking?

A regulatory taking occurs when a government regulation limits the use of private property to such a degree that it effectively deprives the owner of all economically reasonable use of the property. For example, a local government entity may pass a restrictive zoning ordinance or building moratorium that prevents a reasonably profitable use of the property. As a type of inverse condemnation claim, the property owner must file a complaint against the government to initiative an inverse condemnation proceeding.


What are the Limitations on Government Use of Inverse Condemnation or Regulatory Taking?

Determining whether an inverse condemnation or regulatory taking occurred can be complex. Not every government action or regulation amounts to a taking. For example, a regulation may negatively impact just a portion of the property rather than depriving the owner of all economically reasonable use of the property. This may prevent the owner from his or her planned use of the property or the best use of the property but that does not necessarily mean that a taking has occurred.

If you are unsure whether the government’s limitation on the use of your property amounts to a taking, it is a good idea to consult with an experienced Texas inverse condemnation attorney to review your options and rights.


Do You Have an Inverse Condemnation Claim?

Determining if you have a claim depends on the facts of your case and whether you can prove the elements of an inverse condemnation action (intent, causation, and public use). Some common cases, however, where a property owner may have cause to file an inverse condemnation Texas claim include:

  • Water diversion projects. For example, a government entity may construct a dam that results in flooding to an adjacent owner’s land.
  • Zoning ordinances or a building moratorium.
  • Public nuisance issues such as railroad tracks or airports.
  • Oil pipelines or other utilities crossing the owner’s land.
  • Construction of roadways.

Inverse condemnation in Texas is complex. Consult with a Texas inverse condemnation lawyer to determine if you have grounds to file a claim.


Frequently Asked Questions About Texas Inverse Condemnation Cases

Do I need an attorney to negotiate with a condemning authority?

There is no legal requirement that states that you must have an attorney to negotiate with a condemning authority. However, government entities generally attempt to limit the amount of compensation that they pay to an owner. Having an experienced Texas inverse condemnation lawyer negotiate on your behalf can help ensure that you receive just and adequate compensation and that your rights are protected.

What is considered just and adequate compensation?

Just and adequate compensation is typically the fair market value of the property as calculated by a real estate appraiser or professional. However, there are many factors that can impact just and adequate compensation. An attorney can help you to determine the amount of just compensation for your property.

How do I choose the best attorney for my inverse condemnation case?

When choosing the best attorney for your case, you want a law firm with a proven track record of representing landowners in eminent domain and inverse condemnation claims. The Padua Law Firm has over a decade of experience helping landowners to protect their rights and receive fair compensation from condemning authorities.


Contact the Inverse Condemnation Attorneys at Padua Law

Padua Law Firm is centrally located in Houston, Texas. The experienced attorneys at Padua Law have a proven track record of representing landowners in eminent domain and inverse condemnation cases. If you or someone you know are facing a condemnation action, contact us today to discuss your options.