When is a Precondemnation Entry Considered a Taking?

The power of eminent domain allows the government to take private property as long as it is used for a public purpose and “just compensation” is paid to the property owner. Sometimes the government is not sure whether it wants to take property or whether the property itself can support the improvements the government wants to construct. In these cases, it may seek to perform property inspections. This raises an important question for property owners in New Jersey: when do these entries become “takings” which require the government to pay compensation?

Takings and Precondemnation Entries

First, we need to understand what “takings” are. A taking occurs when a condemnor exercises its power of eminent domain to obtain ownership of private property for a public purpose. When the government takes private property, it must provide just compensation to the owner.

On the other hand, a “precondemnation” entry takes place when a prospective condemnor enters private property to perform inspections before eminent domain is used to take the property. N.J.S.A. 20:3-16. The statute requires that property owners be notified of the intent to perform these inspections no later than 10 days prior to the date of entry. Unlike property tax assessors who may be denied entry, prospective condemnors usually cannot be denied entry. Moreover, property owners are usually not entitled to receive compensation for these entries unless the property has been damaged during the course of an inspection or there is substantial interference with the property’s possession.

Precondemnation entries should ideally be brief and non-invasive, meaning they should only last long enough for the government to collect necessary information. Unfortunately, lengthy and invasive property inspections can sometimes take place. Property owners in these situations may feel that their constitutional right to use and enjoy their property free from government interference is not being honored.

When Precondemnation Entries Become Takings

Courts have held that precondemnation entries can turn into “takings” where the government owes compensation to landowners. In Loretto v. Teleprompter, 458 U.S. 419, 426 (1982), the United States Supreme Court held that “when physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred.” Even when the intrusion occupies a small portion of property, it can become a taking if it “prohibit[s] all economically beneficial use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992). Moreover, temporary occupations of property are deemed takings when there is a “total occupation” of property for a substantial period of time. John R. Sand and Gravel Co. v. U.S., 57 Fed.Cl. 182, 189 (Fed. Cir. 2003).

The District Court of New Jersey considered a challenge to a precondemnation entry. RLR Investments, LLC v. Town of Kearny, Civil Action No. 07-cv-3648 (DMC) (D.N.J. June 29, 2009). In that case, the Town of Kearny sent the plaintiff a notice that it intended to enter the plaintiff’s property to conduct investigations. Id. at 3. The plaintiff argued that such an entry violates the United States and New Jersey Constitutions as well as the New Jersey Eminent Domain Act. Id at 4. The court held that even if the entry is considered a taking, it is not presumed to be illegal because the town followed New Jersey condemnation law. Id. at 13. The court declined to address how much compensation was owed to the plaintiff because the plaintiff did not exhaust state just compensation procedures. Id. 

The Supreme Court has since broadened its view on when entries become takings. In a landmark decision, the Court held that a California labor regulation allowing union representatives to visit private farmland for three hours a day, 120 days a year was a per se violation of the takings clause. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021). In that case, the Court reasoned that the right to exclude is a fundamental element of the right to own private property. Id. Thus, the duration and frequency of precondemnation entries are significant factors in determining whether a taking has occurred.

Other jurisdictions also provide context on whether a government entry is a taking. In an article on inversecondemnation.com, Robert Thomas refers to a holding of South Dakota’s Supreme Court. The court held that that any precondemnation tests or experiments that go beyond “minimally invasive superficial inspections that, at most, cause minor soil disturbances,” would be unconstitutional. Betty Jean Strom Trust v. SCS Carbon Transport, No. 30317 (Aug. 21, 2024). Thomas’s article also quotes another case holding that the “right to enter private property for the purpose of examination and survey confers no license to engage in the process of conducting archaeological digs.” Id. (quoting Indiana State Highway Comm’n v. Ziliak, 428 N.E.2d 275, 279 (Ind. Ct. App. 1981)).  In addition, MROD’s Anthony DellaPelle authored this article in the peer-reviewed journal of the Counselors of Real Estate’s Real Estate Issues entitled “Property ‘Inspection’ or Taking?” in 2014, which contains other information and resources on point.

Implications for Property Owners

Although the above case law offers guidance, there is no bright line rule on when a precondemnation entry constitutes a taking. The prevailing theme is that a precondemnation entry becomes a taking when there is a significant physical intrusion of property for an extended period of time. Property owners in New Jersey who find themselves in this situation may feel confused, overwhelmed, and perhaps even angry. These feelings are justified, especially considering the inconvenience and invasion of privacy. Moreover, the 10-day notice requirement gives property owners little time to prepare for such entries. This can cause unnecessary inconvenience and stress.

How We Can Help

At McKirdy, Riskin, Olson & DellaPelle, P.C., our attorneys have the knowledge and resources to zealously advocate for your property rights. If you are facing a precondemnation entry and have questions, contact us. Depending on the facts and circumstances of your case, you may be entitled to compensation.