This Article is written by Owner’s Counsel of America for general informational purposes only. It is intended to assist landowners in understanding some of the basic aspects of condemnations of property resulting from code violations or claims that the property is unsafe, uninhabitable or constitutes a public nuisance. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced real estate, property rights or eminent domain lawyer on the matters covered herein.
Confusion is often created regarding the meaning of the term “condemnation.” On one hand, the term means essentially the same thing as “eminent domain,” i.e. the power of a governmental body to take private property in order to build public projects, such as highways, roads or other necessary infrastructure.
On the other hand, the term can also mean the power of the government to take properties that have been deemed not in compliance with government codes, standards or regulations, or properties that have been determined to be unsafe or uninhabitable. While OCA lawyers do not generally represent property owners in this second category of condemnation takings, this article is written to offer some helpful tips to landowners who may be faced with this issue.
Most cities, towns and counties within the U.S. have adopted building codes that establish standards for properties, aimed at ensuring the health, safety and general well-being of their occupants. The specificity of building codes range from requirements for ensuring a floor can bear an adequate load to the operational functionality of the HVAC and utility systems. Code provisions must generally be in writing and available for review by any member of the public that needs to reference them.
Some jurisdictions focus on penalizing violators of these codes and standards, whereas others adopt more cooperative models designed to help owners bring their properties into compliance. Additionally, some jurisdictions rely primarily on residents to report possible violations, while others take a more proactive approach and conduct windshield surveys or other inspections on a regular basis.
When a municipality receives a code violation complaint, a city inspector will generally visit the property to verify if the complaint is valid. If it is, the property owner will be notified about what corrections are needed and how long they have to make them. If the property owner fails to take the proper steps to reach code compliance, monetary assessments and penalties may be imposed, and eventually the property may even be condemned by the government.
While the strictest attention to code compliance is paid to newly constructed homes, increasingly these code provisions are being used to target older homes that may be in a state of poor repair or condition, or possibly located in dilapidated or deteriorating neighborhoods. They have also been used to target properties in what are termed “blighted” areas. Abandoned homes are particularly vulnerable to code non-compliance claims.
Most code violations do not pose a health threat or create a nuisance to others. However, on occasion the code non-compliance may be deemed so serious that it does reach a point where the structure may be deemed unsafe or unfit for habitation. This can happen when the house can no longer support sanitary living conditions. For instance, if the plumbing is not working or the home is allowed to accumulate so much clutter as to cause infestations. Houses can also suffer from black mold, particularly in areas prone to flooding.
Once again, if necessary repairs are not made within a prescribed period of time, the local government may seek the right in court to take over (or condemn) the property, which could possibly lead to an actual demolition of the structure.
In most instances, some form of just compensation is due for the taking of property, even if taken as a result of code violations or assertions that the structure is unsafe or uninhabitable. However, in many of these cases landowners do not receive fair compensation because (1) in the case of a building structure, the cost of demolition often reduces the money that they would otherwise receive or (2) the poor condition of the property or structure may result in little, if any, compensation being due.
However, in 2018 OCA member James Burling and the Pacific Legal Foundation did prevail in a case where they represented David and Lourdes Garrett. The Garretts had renovated a dilapidated townhouse that they bought from the city of New Orleans. But their dream quickly turned into a nightmare when—barely four months after they purchased the building—the city suddenly sent a wrecking crew and demolished it, after which they presented the Garretts with a $11,000 demolition bill. The Garretts had previously received no notice, no hearing, and no compensation. Although a federal district court dismissed their claims, PLF won an appeal in the federal circuit court which vacated the earlier ruling and said all of the Garretts’ claims can and should be heard in federal district court. The 5th Circuit’s full opinion can be read here.
If you are a property owner facing the possible condemnation of your property as a result of code violations or a determination that it is an unsafe structure, below are some steps you may wish to take to protect yourself:
OCA’s network of attorneys not only represent landowners in courts throughout the country, but also advocate for the rights of private property owners. From lecturing on property rights and being active in their local communities to filing amicus briefs with the U.S. Supreme Court, OCA’s eminent domain lawyers are committed to advancing the rights of private property owners nationwide. If you are concerned about protecting your property rights, contact Owners’ Counsel of America today.