July 2004
You paid for your property so you can do with it what you like. Right? Americans believe strongly in private property rights. Indeed, the whole American revolution was built upon the premise that government power should be limited and that property owners should be free to exercise their rights. However, government does have the authority to regulate your use of your property. Because each home is unique, each piece of real estate is different, property owners sometimes struggle to understand just what are their rights to use their own land.
All government authority in the United States is derived from our constitution. The constitution gives the federal government numerous powers and allows states to have authority in areas not under federal jurisdiction. Fortunately for private property owners, our founding fathers had the foresight to enshrine in our constitution protections for property owners.
The Fifth Amendment to the U.S. Constitution states in part that "No person [shall] be deprived of life, liberty, or property; nor shall private property be taken for public use, without just compensation."
While these words sound simple enough, many property owners have spent a lot of time and money fighting the government over just what these words mean. It is clear, for example, that if the government totally takes your property through an eminent domain process (condemning the land for, say, a highway), you must be compensated for the fair market value of that land. Ascertaining the value can be contentious. Property owners who are not satisfied with the price that the government is willing to pay may wind up going to court to receive a fair payment.
What about government actions that limit or restrict your rights to use your property? Sometimes called "regulatory taking," these actions by government may reduce the value of your property but the government may not have to pay you for that reduction in value. The U.S. Supreme Court has clearly said that a government regulation that prevents a property owner from using her property at all clearly amounts to a "taking" of the property, therefore the government entity must compensate the property owner for the loss of value. However, under the constitution, any regulation that has a legitimate public purpose and does not constitute a total denial of use of the property is usually considered to a constitutionally valid regulation that does not require the government to compensate the landowner.
So, for example, zoning that restricts the type and size of structures that may be built has been held to be a constitutionally valid form of land use regulation that typically does not require the government entity that imposes the zoning to compensate the landowner for eliminating some of the property owner's rights to use the land.
What should you do if you feel as though the government has taken away some of the value of your land by excessive regulations? You may contact an attorney who could review the regulation and advise you as to whether or not the regulation is constitutionally valid and what your chance of success would be if you challenged the regulation in court.
If the government decides to take your land entirely through an eminent domain proceeding, you may not be able to stop them. But you can at least make sure that you are paid fair market value.
