Right of Entry vs. Taking: What Property Owners Must Know?

In exercising their right of entry, government entities must carefully navigate property owners’ constitutional protections. While the power of eminent domain allows the government to acquire private property for public use with just compensation, the preliminary stages of this process often raise complex legal questions. As experienced property tax lawyers, we frequently see cases where government agencies seek to conduct property inspections before deciding whether to proceed with a taking. This creates a critical consideration for New Jersey property owners: understanding when these preliminary entries cross the line into compensable takings under the law.

For property owners seeking property tax appeal services or facing potential government acquisition, distinguishing between a permissible right of entry and a compensable taking is crucial. Occasionally the government needs to evaluate whether a property can support their planned improvements or determine if acquisition is necessary at all. These preliminary inspections, while seemingly routine, can potentially infringe on property rights in ways that require compensation under New Jersey law.

Understanding Takings vs. Right of Entry

A taking occurs when the government exercises its eminent domain power to acquire private property for public use. Under both federal and New Jersey law, the government must provide just compensation to property owners when taking their property. In some cases, property owners may need to pursue inverse condemnation claims if the government’s actions effectively take their property without formal proceedings.

The Legal Framework for Right of Entry

A right of entry, often called a “precondemnation” entry, allows prospective condemners to inspect private property before initiating formal eminent domain proceedings. Under N.J.S.A. 20:3-16, government entities must provide property owners at least 10 days’ notice before entering the property. Unlike the NJ property tax appeal process where property owners may refuse access to assessors, property owners generally cannot deny entry to prospective condemners performing these inspections.

When Does Right of Entry Require Compensation?

Typically, property owners aren’t entitled to compensation for standard precondemnation entries. However, two important exceptions exist:

1. When the inspection causes physical damage to the property
2. When the government substantially interferes with the owner’s possession and use of the property

Scope and Duration of Entry Rights

Proper precondemnation entries should be:

• Brief and targeted
• Minimally invasive
• Limited to necessary information gathering
• Respectful of property owners’ rights

When government inspections become prolonged or excessively intrusive, they may cross the line into a compensable taking. Property owners experiencing extended, or invasive inspections should understand that such actions might violate their constitutional rights to use and enjoy their property without unreasonable government interference.

While the NJ property tax appeal process and precondemnation entries are different procedures, both require careful attention to protect property owners’ rights. When government inspections extend beyond reasonable scope or duration, property owners may need to consider inverse condemnation claims to secure just compensation for the interference with their property rights.

When Right of Entry Becomes a Compensable Taking

The United States Supreme Court has established clear principles for when government entry constitutes a taking requiring compensation. In Loretto v. Teleprompter, the Court determined that permanent physical occupation of property, regardless of size, amounts to a taking. This principle was further developed in Lucas v. South Carolina Coastal Council, which established that government actions prohibiting all economically beneficial use of land constitute a taking. This is similar to how missing the New Jersey property tax appeal deadline can impact property owners’ rights to contest their assessments.

Even temporary occupations can trigger compensation requirements when they involve “total occupation” for substantial periods. The 2021 landmark decision in Cedar Point Nursery v. Hassid significantly expanded the understanding of when right of entry crosses into a taking. The Court emphasized that the right to exclude others is fundamental to property ownership, making the duration and frequency of government entries crucial factors in determining whether compensation is required.

New Jersey’s Legal Framework

While property owners can seek a tax attorney NJ free consultation to understand their rights in assessment matters, the rules regarding government entry are more complex. In RLR Investments, LLC v. Town of Kearny, the District Court of New Jersey examined challenges to precondemnation entry rights. The court emphasized that following proper statutory procedures doesn’t automatically prevent an entry from being considered a taking, though it may affect the legality of the action.

Defining Permissible Entry Scope

Recent court decisions have helped clarify what constitutes acceptable government entry versus a compensable taking:

• Minimally invasive superficial inspections causing minor soil disturbances are generally permitted
• Archaeological digs and extensive testing typically exceed permissible entry rights
• The frequency and duration of entries significantly impact whether compensation is required
• The degree of interference with normal property use helps determine if a taking has occurred

For detailed analysis of these issues, MROD’s Anthony DellaPelle explored the distinction between inspection and taking in his peer-reviewed article in Real Estate Issues, providing valuable guidance for property owners facing government entry requests.

Practical Implications for Property Owners

While case law provides general guidance, there’s no definitive rule for when a right of entry transforms into a taking of private property. The courts generally consider the duration and extent of physical intrusion, similar to how they evaluate access issues in landlocked property cases. Understanding these nuances is crucial for property owners facing potential government entry requests.

Key Factors Property Owners Should Consider

Several elements influence whether an entry becomes a compensable taking:

• Duration of the government’s presence
• Extent of physical intrusion
• Impact on daily property use
• Degree of interference with business operations
• Scope of inspection activities
• Property damage or alterations

Managing the Entry Process

The 10-day notice requirement can create significant challenges for property owners. While many wonder how much does a property tax lawyer costs when seeking legal guidance, the potential impact of extensive government entry often justifies professional legal representation.

Property owners should consider:

• Documenting the property’s condition before entry
• Maintaining detailed records of all government activities
• Recording any business interruptions or losses
• Photographing any physical changes or damage
• Tracking the duration and frequency of entries
• Noting any interference with normal property use

Protecting Your Property Rights

Property owners experiencing extended, or intrusive government entries should understand their legal options. Just as landlocked property issues require careful legal navigation, challenging excessive government entry demands experienced legal guidance.

While not every entry constitutes a taking, property owners have the right to:

• Request clarification of inspection scope
• Document all communications
• Challenge unreasonable intrusions
• Seek compensation when appropriate
• Maintain their fundamental property rights
• Request reasonable accommodation for business operations

Experienced Legal Guidance for Property Rights Issues

When facing questions about government right of entry or potential takings, having experienced legal counsel is crucial. As New Jersey property tax appeal attorneys with decades of experience in property rights law, McKirdy, Riskin, Olson & DellaPelle, P.C. provides the skilled advocacy property owners need during these challenging situations.

Our property tax appeal attorneys understand the complexities of government entry rights and can help protect your interests throughout the process. Whether you’re concerned about the scope of a proposed entry, questioning if compensation is warranted, or require guidance on your legal options, our team has the knowledge and resources to advocate effectively for your property rights.

Contact us today for a consultation to discuss your situation. Our experienced attorneys will evaluate the specific circumstances of your case and help determine if you may be entitled to compensation. Call (973) 539-8900 or complete our online contact form to protect your property rights.