Remember the case in which the Fifth Circuit held that a townhome association's right to collect maintenance fees -- recognized as property under state law -- is not "compensable property" in an eminent domain action? In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the "consequential loss rule" governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.
Well, the townhome association has filed a cert petition, which asks the Supreme Court to review this Question Presented:
The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use without just compensation. U.S. Const. amend. V. In the present case, the United States condemned 14 of 58 properties comprising Mariner’s Cove Townhomes Association, Inc. All 58 properties were bound by a covenant running with the land to contribute assessment fees to support activities of the association. The Fifth Circuit recognized that the association’s right to collect assessments was a property right under controlling state law but nevertheless held that the government need not pay any compensation for taking it. The question presented is:Whether, as the Seventh, Ninth, and Tenth Circuits and numerous state supreme courts have held, “the right to collect assessments, or real covenants generally,” App., infra, 18a, constitute compensable property under the Takings Clause or whether, as the Fifth and D.C. Circuits and a smaller group of state supreme courts have held, they constitute noncompensable property.
Ooh a circuit split! Which the Fifth Circuit recognized: "Moreover, the decisions in other states addressing this question are legion and conflicting." But the court rejected the majority view because accepting it might "unduly burden" the government's ability to exercise its eminent domain power.
Wait, isn't that what the Fifth Amendment was supposed to do?
Here's the Court's docket entry if you want to follow along.