"A Bizarre Condemnation"

Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a "Kafkaesque" decision by the Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation?  See Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

Well, we're not alone.  The New Jersey Law Journal today published an editorial entitled "A Bizarre Condemnation." It's not available on-line except for subscribers, but we will note some of the key passages:

Rarely is there an appellate decision so bizarre that it leaves seasoned lawyers and laypersons alike shaking their heads in disbelief. It is a basic premise of constitutional law that the government may not take property without due process and just compensation. Yet according to Klumpp v. Borough of Avalon, 2009 WL 2341554 (July 31, 2009), a New Jersey municipality can do just that.

. . . .

The court agreed that the Klumpps had fee simply or "record title" based on such evidence as tax bills, borough records and recorded title, but called this evidence "indicia of plaintiffs' bare legal title ... and nothing more." Rather, the court held, it is "equitable title" that is important and the borough has this because it had taken the property in 1962 by making it "essentially unavailable to [plaintiffs] for any purpose." Although the taking occurred, no compensation was due, apparently because it was accomplished by inverse condemnation -- the very finding that should have entitled the Klumpps to compensation.

In sum, the court made two fundamental legal errors. First, it held, with no facts to support it, that a taking had occurred in 1962, effectively ignoring clear evidence that the Klumpps continued to own the property, and it did so by inexplicable and improperly bestowing so-called "equitable title" on Avalon versus the Klumpps' "mere legal title." It misunderstood the situations in which the fiction of "equitable title" has been used to work an equitable result. Second, it misunderstood the concept of inverse condemnation, using it not as a remedy for property owners but as a sword by which the government can circumvent the Constitution and the Eminent Domain Act and usurp property without paying.

More about the case here, including the petition for review. Several amicus briefs have been filed, urging the New Jersey Supreme Court to review the decision:

• Brief Amicus Curiae of Builders League of South Jersey, Inc. In Support of Petitioners

• Brief of Proposed Amicus Curiae New Jersey Land Title Association in Support of Petition for Certification