Government’s Forced Sale of Property Does Not Constitute a Taking

Nossaman LLP

When the government requires a property owner to give up private property, the takings clause normally comes into play and the government is required to exercise its power of eminent domain. But is that always the case? According to a recent court of appeal opinion, People v. Gonzalez (Nov. 24, 2020, D077208), there are a number of circumstances in which the government can require a property owner to sell without triggering a taking of private property.

In Gonzalez, a property owner was charged with using his property without a permit or variance and maintaining an unauthorized encroachment. The court ordered the owner to bring his property into compliance with the city’s municipal code. After five repeated violations of the court order, the owner agreed to a condition requiring him to sell the property at fair market value if he did not undertake the necessary corrective conditions on the property. After again failing to comply, the court ordered the sale of the owner’s property. The owner then sued, claiming such a condition constituted an unconstitutional taking of his property. The owner further argued that if the government were going to require the sale of his property, it must comply with the eminent domain procedural statutes (such as securing an appraisal, making an offer of just compensation, adopting a resolution of necessity and filing an eminent domain proceeding).

The trial court denied the takings challenge and the Court of Appeal agreed. The Court explained that “judicial action may result in a person ceasing to own private property for any number of lawful reasons entirely outside of the eminent domain law. For example, marital dissolution proceedings, judgment enforcement actions, nuisance abatement proceedings and forfeiture proceedings all may result in divesting a person of his or her private property. None of these proceedings involve eminent domain law.” The Court further held that there is “no case in which an order to sell property for full market value has been found to constitute a taking, particularly where the order was entered pursuant to a condition to which the owner expressly agreed.”

The case serves as a reminder that not every governmental action, even ones which potentially trigger the forced sale of property, involve a takings claim. And if you’re interested in the code violations that triggered this mess, check out the Metropolitan News Enterprise article. To give you a flavor for what was involved, one witness testified the owner created an eyesore by leaving in his front yard all kinds of items such as a porta-potty, a fridge, a microwave, old sinks, a vacuum cleaner, rusted containers and other debris.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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