Inverse Condemnation - a valuable tool

Inverse condemnation is valuable tool for property owners and associations and can be relevant and useful in many situations. State and local governments and their agencies appear to operate with absolute immunity leaving property owners with no recourse when private property is damaged by a government entity. While it is true that a government entity is generally free from liability for its negligent actions, the doctrine of inverse condemnation is a little known remedy available to property owners when their private property is damaged. This doctrine of inverse condemnation originates in Article I, Section II of the Virginia State Constitution. Under this doctrine, recovery is permitted when private property is taken or damaged for public use, thereby bestowing on the owner a right to sue for such amount as would have been awarded if the property had been condemned under the eminent domain statute.

A recent decision from the Supreme Court of Virginia, AGCS Marine Ins., Co v. Arlington County, further explained inverse condemnation and confirmed that the doctrine applies to personal property as well as real estate. In that case, a sewage back-up caused extensive damage to a Harris Teeter grocery store as well as its contents. The County argued that inverse condemnation applied only to real estate and not to the personal property, in this case groceries, contained therein. The Court ruled that the doctrine of inverse condemnation applies to personal property as well as real estate. The Court explained that “private property” includes personal property.

There are many ways in which a government entity can cause damage to private property belonging to individuals and associations. For example, snow plows and garbage trucks operated by government agencies can damage vehicles, mail boxes and irrigation systems. The improper maintenance of a sewage system or pumps can lead to backups that damage interiors and personal property. When approached with claims for this type of damage, city and county risk management officials routinely claim sovereign immunity; however, this is not always a valid defense for damaging private property especially if the damage was foreseeable.