October 2025

When an opinion starts off with “[t]his zoning/inverse condemnation case revolves around the availability of parking…” you kinda know, whatever the issues might be, that the court isn’t likely headed in a good direction for the claimant.

That’s exactly how the Supreme Court of South Carolina began The Gulfstream Cafe, Inc. v. Georgetown County, No. 28303 (Oct. 29, 2025).

The bottom line is what you might expect, given that opening. The court rejected the takings and due process claims by a restaurant located in a special development district that the County’s permitting another restaurant to set up nearby violated the first restaurant’s rights.

The essence of the takings claim is that Gulfstream Cafe (the first restaurant) has been there for quite a while, and has an easement to allow its diners to use certain parking spaces. For many years, things worked out: the adjacent building housed a marina business…

Continue Reading South Carolina: Restaurant Was Not Taken When County Permitted Another Adjacent Restaurant

Is “personal” property (as contrasted with real estate), or property that is used in commercial dealings, not “private property” is protected from uncompensated takings by the Fifth Amendment?

That’s what the U.S. Court of Appeals for the Tenth Circuit appeared to conclude in Green Room LLC v. State of Wyoming, No. 24-853 (Oct. 27, 2025).

There, the court was faced with (inter alia) a takings claim which asserted that when the Wyoming legislature amended a statute, the effect of which was to make what had been a legal market in hemp products illegal. “In addition to the claims brought in their complaint, Plaintiffs’ brief in support of their motion argued that SEA 24 constituted an unconstitutional regulatory taking of their personal property.” Slip op. at 9.

We won’t go into detail about how the Tenth Circuit analyzed the federal preemption and dormant commerce clause claims, except to…

Continue Reading No Taking When Legislature Revised Statute And Made Hemp That Was Legal … Illegal: No Property Right In Personal, Commercial Property

This past week we were busy with the 22d Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Here’s the text of the remarks which I prepared for the session on “Public Safety, Private Property, and Just Compensation.” Note: because of time, I truncated what I planned on saying and kept it shorter.

* * * *

Public Safety, Private Property, and Just Compensation

Before I begin, a prelude. As you learned earlier, yesterday the student Real Estate Law Society produced a reargument of Kelo.

Ms. Kelo won this time. Six-to-zero, adopting the rationale of Justice Thomas’s dissent in the original case, with one concurring opinion. (More about this event in a separate post.)

And for those of you in the audience who didn’t know, Ms. Kelo’s famous little pink house was saved, even though her property was not. The house was taken apart board-by-board…

Continue Reading Salus Populi Est Suprema Lex: 2025 Brigham-Kanner Property Rights Conference Report

You’ve all heard the phrase “cut out the middleman” in advertising or crafty dealmaking. Deal directly and realize a savings, or somehow get a better bargain.

To our eyes, it looks like that’s what the New York legislature might have had in mind when it amended its Medicaid statutes to cut out “a vast network of private organizations, referred to as ‘fiscal intermediaries'” who had handles the administrative, financial and compliance responsibilities when beneficiaries who need help with daily living hire their own personal assistants at public expense. In 2024, the legislature altered this scheme, and “replac[ed] the existing network of fiscal intermediaries with a single, statewide fiscal intermediary.”

We don’t know why the legislature took this route, but it doesn’t so much look like the state eliminated all of the middlemen from a piece of the action, but selected a single beneficiary to get the entire vig.

Continue Reading CA2: No Taking When Legislature Consolidated NY Medicaid Middlemen

A short one from the U.S. Court of Appeals for the Third Circuit, which asks: when the government is holding your abandoned property for you, do you have to ask for it to return it to you before you can bring a takings claim?

In Dillow v. Treasurer of the Commonwealth of Pennsylvania, No. 24-2004 (Oct. 3, 2025), the court held yes: the owner’s takings claim was not ripe because he had not asked the Treasurer to give the property back.

This is a non-precedential opinion so it is short. But there are two interesting parts that you should focus on.

First, the description of Pennsylvania’s system of unclaimed property. Pennsylvania deemed Dillow’s property — an uncashed claims payment check and a bank draft — to be “unclaimed,” and the Treasurer took custody and converted them to cash. Dillow did not file a claim for the cash. He acknowledged…

Continue Reading CA3: No Taking Until You Ask For Your Property Back

An interesting dirt law decision from north of the border in a case we’ve been following.

In Kosicki v. City of Toronto, No. 40908 (Sep. 19, 2025), the Supreme Court of Canada held that the usual common law rule of “no adverse possession against the government” didn’t govern, and permitted a private owner to do just that.

We can’t say we understand fully the decision as we have not been “called to the Bar” in Canada, but since our legal systems have a common legal ancestor, we can understand enough to get the story.

Here’s how the majority framed the issue:

[1] The issue in this appeal is whether the appellants, Pawel Kosicki and Megan Munro, can succeed in their claim for possessory title under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”). Since 2017, the appellants have jointly owned a residential property…

Continue Reading Cour suprême du Canada: Private Owner May Adversely Possess Public Land

As part of the Brigham-Kanner Property Rights Conference being held next week at the William and Mary Law School, the student-run Real Estate Law Society is producing a very interesting program that offers a look back on Kelo v. City of New London, in this that case’s twentieth year.

We’re going to be rearguing the case in a Supreme Court moot, which will feature the lawyers for Susette Kelo — the Institute for Justice — rearguing her case to see if two decades of experience produces different arguments, or even a different outcome. Any guess who will be arguing the cause for the City of New London? That’s right, none other than Yours Truly (we promise not to “take a dive” and confess error on the City’s part — this is a moot court, after all!).

Serving as Moot Justices are academics, practitioners, and law students, including…

Continue Reading Kelo Reargued: Has 20 Years of Controversy Changed the Eminent Domain Debate?

The U.S. Court of Appeals for the Seventh Circuit is the latest court to wade in (or more accurately, re-wade in) to what we call the SWAT Takings issue.

The logic is sound: under a governmental power (police power), the government (SWAT) has physically invaded (deprived the owner of an essential stick of private property, the right to exclude) a home (private property), for public use (police apprehending suspects is a good thing), triggering the obligation to spread the burden of this public good to the entire public (Armstrong).

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Continue Reading CA7: No Taking For SWAT Destroying Property While Executing Valid Warrant

In Witherspoon v. Ince, No. 24-6194 (Oct. 9, 2025), the U.S. Court of Appeals for the Tenth Circuit held that a property owner who alleged that Oklahoma’s system of private takings — where the state authorizes private parties to use eminent domain to take what looks like an easement by necessity over a neighbor’s land for access — is unconstitutional, cannot sue the State under 42 U.S.C. § 1983 to raise that claim.

The private taking is not “under color of state law,” according to the court.

If that seems counterintuitive (after all, the neighbors are literally using a State-authorized process to seize property for their own private uses), the court found a way noodle through it:

Section 1983 creates civil liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any…

Continue Reading CA10: Color Of What? Private Takings Are Not Government Action

The latest cert petition from Michael Berger, this time involving procedural due process and takings.

Here are the Questions Presented:

The City of Dana Point “red tagged” Petitioner’s motel and then had a receiver appointed to oversee its rehabilitation without ever providing notice of the hearing. Thereafter, it set the property for a foreclosure sale. It did all of this by means of “ex parte” proceedings that provided no formal notice or hearing. That raises serious due process issues, both procedural and substantive, as well as a taking of property without just compensation.

Question 1: When government acts without notice in a way that seriously impacts the rights of citizens, does the lack of constitutionally required notice deprive the victim of property without due process of law?

Question 2: Is it finally time to rein in California’s practice of ignoring this Court’s line of regulatory takings decisions, based…

Continue Reading New Cert Petition: You Can’t Go Your Own Way On Takings, California