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Inverse Condemnation: Property Rights & Government Actions

Government Accountability Land Use & Zoning

When discussing property rights and government actions, terms like eminent domain and condemnation often come to mind. But what happens when private property is taken outside an eminent domain proceeding? That illustrates the lesser-known concept of inverse condemnation. In this blog post, we'll delve into what inverse condemnation entails, how it differs from eminent domain, examples of its application, and the remedies available.

What is Inverse Condemnation?

When the government “takes” private property, the issue of eminent domain comes to mind. Eminent domain occurs when the government exercises its right to force the sale of (or “take”) private property for a public use. In exchange, this right is balanced with the government’s constitutional obligation to pay just compensation to the private property owner.1 This generally occurs through a formal condemnation proceeding. When that proceeding does not occur, the private property owner can initiate an inverse condemnation proceeding to seek recovery of just compensation for the government taking that caused damage(s) to the owner’s property rights.2

It's important to note the difference between trespass and a de facto taking, as the former is not part of an inverse condemnation action. A trespass is temporary, while a de facto taking is the permanent ouster or physical or legal interference with the private property owner’s use, possession, and enjoyment of their property.3 Permanence is critical here.

What are the Elements of an Inverse Condemnation Claim?

In order to succeed in an inverse condemnation claim, the private property owner must prove:

  1. Action by a government or public entity with eminent domain power;
  2. Intrusion onto private property or interference with the owner’s property rights;
  3. Constituting a taking (physical or regulatory); and
  4. The property owner suffers damages as a result.4

What are Examples of Successful Inverse Condemnation Claims?

Since inverse condemnation claims can stem from varied circumstances, case examples are informative to evaluate whether you have a potential claim, or whether action by a government or public entity is permitted.

In Corsello v. Verizon New York, Inc., the court held that plaintiffs had stated a valid inverse condemnation claim when it alleged that Verizon had improperly interfered with plaintiff’s property rights outside of an eminent domain proceeding when it attached equipment and lines to their building, constituting a continuous and permanent taking.5 Similarly, in Billeris v. Inc. Vill. of Bayville, the court held that the plaintiff properly stated a cause of action for inverse condemnation pursuant to a claim that the village’s denial of plaintiff’s permit to construct a fence and gates on a private path to prevent public access constituted a taking.6

Unlike these cases, sometimes a purported taking just isn’t so. In, Greece Ridge, LLC v. State of N.Y., the court held that despite the fact ongoing construction by the NYS Dept. of Transportation had caused flooding on plaintiff’s property after periods of heavy rainfall, there was no “taking” because any interference with the plaintiff’s property rights was not permanent enough.7 Likewise, in MacArthur Properties, LLC v. Metropolitan Transp. Auth., the court held that construction improvements made to the subway line which caused closure to plaintiff’s street and impairment to plaintiff’s light, air, and access easements were not permanent, and thus plaintiff had no claim in an inverse condemnation proceeding.8

What are Other Considerations in an Inverse Condemnation Proceeding?

Property owners facing inverse condemnation have several potential remedies available to seek compensation for their losses: First, monetary damages. Property owners can seek monetary compensation for the diminution in property value, loss of use, or other damages resulting from the government's actions. Second, injunctive relief. In some cases, property owners may seek injunctive relief to prevent further interference with their property rights or to compel the government to take corrective actions. Third, attorney's fees and costs. Prevailing property owners in inverse condemnation cases may be entitled to recover attorney's fees and litigation costs incurred in pursuing their claims.

It's also critical to pay attention to the statute of limitations. An inverse condemnation cause of action accrues at the time of the taking and is subject to a three-year statute of limitations.9


In conclusion, inverse condemnation serves as a safeguard for property owners' rights against governmental actions that infringe upon those rights. By understanding the nuances of inverse condemnation and the remedies available, property owners can effectively protect their interests and hold the government and public entities accountable for its actions. Conversely, it is important for governments and public entities to know when they are required to initiate a formal eminent domain proceeding as to avoid potential liability in an inverse condemnation action.

If you have questions about inverse condemnation actions, potential government or public entity takings claims, or need assistance navigating the process as a property owner or the government or public entity, contact the attorneys at The Zoghlin Group for help. For inquiries related to Government Accountability, Land Use and Zoning, and Municipal Law, please contact Mindy Zoghlin, Esq., Jacob Zoghlin, Esq., or Ryan Ockenden, Esq.




[3] Ward v. Bennett, 214 A.D.2d 741, 743 (2d Dep’t 1995).

[4] O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981).

[5] Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 787 (2012).

[6] See Billeris v. Inc. Vill. of Bayville, 15 A.D.3d 844 (2d Dep’t 2017).

[7] Greece Ridge, LLC v. State of N.Y., 130 A.D.3d 1559, 1561 (4th Dep’t 2015).

[8] See MacArthur Properties, LLC v. Metropolitan Transp. Auth., 61 Misc. 3d 1204(A) (Sup. Ct. N.Y. Cnty. 2017).

[9] Savo v. City of New York, 208 A.D.3d 1377, 1378 (2d Dep’t 2022); CPLR § 214(4).


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