We sometimes forget that although we may live in the land of freedom and may own a house with a white picket fence and little backyard, our United States Constitution (and the Constitution of the State of Georgia) allows the government to take our property away from us.
Under both Constitutions, the government may take your property for a public purpose. In return for the property taken (whether it is a portion of the property or the entire piece), you are entitled to receive compensation. This means that you are entitled to receive “fair market value” for your property. While a hotly debated issue as to what is fair market value for any particular piece of property, in general “fair market value” means the price which a property would bring in a competitive and open market under all conditions that constitute a fair sale, and with both the buyer and seller acting prudently and knowledgeably.
The proceedings by which the government takes your property and in return pays you “just and adequate compensation” for it are called “eminent domain” proceedings.
In eminent domain proceedings, the government takes direct action to acquire title to your property. In Georgia, this means that the government brings a condemnation lawsuit under its eminent domain powers by filing a petition with the court (a “declaration of taking”) and depositing an estimated amount of “just compensation.”
But sometimes a taking by a government body is not so direct.
Sometimes the state, municipal or county government can effectively “take” a person’s property (or a portion of it) without filing a formal condemnation proceeding. These takings often arise because the government either inadvertently does something, or fails to do something, that interferes with a property owner’s property rights.
For example, if in the course of cutting or relocating curbs, a city interferes with a business’ ingress or egress, it can constitute a taking. Another example is when a governmental entity’s regulations are so burdensome that they make the property unusable by the owner.
In cases such as these, it is not the government that files a proceeding based on a taking of property, but the injured property owner. These types of cases are known as actions for ““inverse condemnation.”
The gist of an inverse condemnation proceeding is that by virtue of government action (or inaction), the government has deprived the owner of his/her property (or a portion of it) without proving just compensation.
Georgia Real Estate Counsel With the Experience You Need.
At the Law Offices of Mark Weinstein we handle all types of real estate cases. If you have a real estate problem, we can help craft a solution. We have offices in Cumming, Georgia. We serve Atlanta and a number of the surrounding counties. To schedule your free phone consultation, call us at: 770-888-7707 or e-mail your inquiries to firstname.lastname@example.org.