In North Carolina, property owners may be entitled to get compensation for their property and recover reasonable attorney and witness fees if they prevail in an inverse condemnation claim against a governmental body. 

The term condemnation is often used to refer to a situation where a governmental body files a civil action to take private property. Basically, in a condemnation case, the property owner is named as the defendant, whereas the government or public entity that instituted the action is the plaintiff.

The government or public entity is mandated by the law to deposit what they deem as being the fair market value for the private property before they can possess it. That said, not many people are keen on the government taking their property under eminent domain. In fact, most people fight fiercely in court to preserve their property.

A different scenario may arise where the governmental body with eminent domain powers damages private property. In such a case, the private property owner can file an inverse condemnation action. 

What Is Inverse Condemnation? 

Inverse condemnation is a term used to refer to a situation where the government takes private property or causes damage to it but fails to pay condemnation as mandated by the 5th Amendment of the Constitution. In inverse condemnation cases, the private property owner is the plaintiff and the governmental body is the defendant.

The good news with inverse condemnation lawsuits is that with good legal representation, the property owner can not only obtain damages but also other fees such as expert witness fees and attorney fees.

Situations That May Prompt Inverse Condemnation in North Carolina

To sue for inverse condemnation, the aggrieved property owner needs to prove that the damage to the property or the drop in its value was as a result of government action or negligent inaction. Such scenarios can include:  

• Regulatory takings: This type of inverse condemnation occurs when a governmental body makes changes to the law that bars the property owner from conducting business on their property. Suppose the new regulations deprive the property owner of viable or reasonable economic use of their property, it is as if the property has been lost even though the owner retains the title.
• Partial condemnation: This occurs when the government or public entity takes part of your property for development, thereby rendering the remaining property useless. For instance, if the government condemned a parking lot, the restaurant adjacent to it could lose business. Given that the restaurant will no longer be a viable business site, the owner can sue for inverse condemnation. 
• Diminution of access: A property owner can sue for inverse condemnation when a government’s development of a surrounding area cuts egress and ingress to their property. 
• Government inaction: Suppose the government was negligent and failed to avert a foreseeable disaster, the affected property owner can file for inverse condemnation. 
• The Department of Transportation failing to acquire proper drainage easements causing water to be diverted to your property:Most often, this would be a taking for which the property owner should be compensated. That said, you should keep in mind that there are limitations pertaining to the rights of the property owners to bring action. North Carolina laws (N.C. Gen. Stat. § 136-111 and § 40A-51) mandate that property owners need to recognize and file an inverse condemnation case within two years from the completion of the given government project. 
• Noise from a small base or airport constructed nearby effectively devaluing a residential property. 
• Waste from governmental projects polluting a privately owned property, effectively condemning it and thereby reducing its worth. 

How Inverse Condemnation Works in North Carolina 

In the case of a normal eminent domain action, the government or public entity takes the property and offers the property owner the compensation it deems to be just. The two sides will either negotiate the final price, or the governmental entity will file a condemnation action to acquire the owner’s property and litigate the just price for which the property should be acquired.

As for an inverse condemnation action, the government would have acted in a manner that disregarded the property or its owner’s rights.  As such, the owner must file a lawsuit against the government, alleging actions that are effectively “a taking” of the property and demand a just market value for the damages. In essence, the property owner forces the government to buy the property or pay the damages for its lost value.

How Winnable Is an Inverse Condemnation Claim?

Given that in an inverse condemnation case, the property owner has the burden of proof that a taking has occurred, these cases can be difficult to win. In most cases, when governmental entities are faced with inverse condemnation claims, they will mount a strong defense to avoid paying compensation. This is especially true if other property owners are suffering a similar taking— the governmental body will be afraid that if one taking is proven, more taking claims will follow. 

However, this does not mean that these cases can’t be won. As a property owner, your best bet would be to seek legal assistance from an experienced inverse condemnation attorney. They will not only help you gather compelling guidance but will also give you legal guidance throughout the litigation process. 

Contact Our North Carolina Eminent Domain Attorneys

Given the complexity of inverse condemnation proceedings, property owners should hire an experienced North Carolina eminent domain attorney to help them navigate through the process. Green Mistretta Law can help – contact us today to schedule a consultation to discuss your inverse condemnation case.