March 2025

Here’s the latest in a case we’ve been following. This is GHP Management Corp. v. City of Los Angeles, No. 24-435, the cert petition which asks whether a local ordinance which allowed non-paying tenants to remain in the lessor’s property is a physical taking, or merely the regulation of the lessor/lessee relationship under the Yee theory, which posits that once an owner voluntarily rents property to a tenant, the government then allowing that tenant to remain rent free isn’t facilitating an unauthorized physical occupation, but rather is merely a regulation of the existing lessor/lessee relationship. 

The petitioner property owner has filed its cert stage Reply, which means that all the briefing is in, and next up is for the Supreme Court to set the conference date. Here’s the summary of the issues from the Reply:

Respondents prefer a world where government enjoys absolute immunity from…

Continue Reading Eviction Moratorium As A Physical Taking All Teed Up

We had the New Jersey Appellate Division’s opinion in Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (Jan. 31, 2025) in our queue to digest, when our colleague Joe Grather beat us to the punch with his analysis “Appellate Court Rejects Condemnation Due to Lack of Public Use or Purpose.”

So instead of repeating Joe’s summary and analysis, we’re going to recommend you read his. The short story is that the Township used eminent domain to take property, with the avowed public use being “open space,” which is generally a qualifying public use. The owner objected and the Appellate Division agreed that yes, open space may be a public use, but here, the record pointed to the property actually being used as a “currency” to “exchange for open space.” As Joe writes:

I’m not so sure we agree with the idea that the constitutional “public use&rdquo…

Continue Reading NJ App Div: No Taking To Use The Property To Trade For “Open Space”

Like a lot of residential communities these days, Foothills Reserve was developed under a master plan, and you know what that means … a homeowner’s association and CCRs (covenants, conditions, and restrictions). 

The HOA owned common areas, in which the homeowners had easements under the CCR’s. A “positive” easement to enter and use the common areas, and a “negative” easement which limited the common areas to use as open space. These easements ran with each homeowner’s land.

As part of a highway project, the State of Arizona used eminent domain to take the common areas and the homeowners’ easements. It provided just comp to the HOA for the common areas, while the HOA, on behalf of the homeowners, “sought both the value of the easements themselves and damages for the reduction in home values due to the new freeway’s proximity.” The State agreed it was obligated to provide comp for…

Continue Reading Arizona: Damages For Proximity To Highway Project Available When An Easement – And Not Just Land – Is Severed