Even though the Oklahoma Supreme Court's decision in Snow v. Town of Calumet, No. 119,758 (June 21, 2022) is short, we think it is worth reading because is clarifies who can bring an inverse claim, and what exactly do these claims allege.
In 1978, the Snows' predecessor-in-title granted the Town an easement to maintain sewer lines. The easement was temporary and expired 6 months after the Snows purchased the property in 2010. But after the temporary easement expired, the Town didn't cease its use of the property. Flash forward 7 more years, and the Town asked the Snows to grant it perpetual easements for its continued use. The Snows asked for compensation, but the Town said no.
Next up, the Snows' trespass and inverse lawsuit in state court, with the Town counterclaiming with a quiet title claim asserting it had acquired a perpetual easement by prescription. Cross motions for summary judgment flew: the Snows won the prescription claim (the prescription period is 15 years in Oklahoma), while the Town won the trespass and inverse claim, the latter dismissed because the Snows lacked standing (the claim, the court concluded, belonged to the former owners who had consented to the Town's invasion of the property).
The Oklahoma Supreme Court reversed, concluding that the Snows had standing to bring an inverse claim. While acknowledging the "general rule" that "the right of inverse condemnation belongs to the owner at the time of the taking," slip op. at 4, the court held the general rule wasn't applicable here because the inverse claim wasn't based on the original physical incursion (which was indeed permissive), but on the Town's continued use of the Snow land even after that permission expired. See slip op. at 5 ("When the Town sought perpetual easements from the Snows for the continued use and maintenance of the sewer lines more than seven years after the temporary easements expired, the Snows owned the property, giving them standing to allege an inverse condemnation claim.").
Takings claims are not limited to one-per-property, and "[m]ore than one taking can occur involving a single piece of property." Slip op. at 6. Thus, the fact that the Town had installed the sewer lines with the prior owners' permission didn't really tell us much about whether the Town's continuing use of the property after that permission expired was a taking. There's a difference, after all, between a temporary easement and a perpetual easement, and an owner is within her rights to tell third party users of her property that "you can use it for only a certain amount of time after which your possession becomes adverse to me."
Reversed and remanded for trial.
We posted this one because it emphasizes a related point relating to Co-19 eviction moratoria. Most of the takings challenges have gone nowhere due to the courts seeing the property right being invaded by a tenant remaining past the expiration of the owner's permission as the right to exclude. Ah ha, the courts exclaim, you landlords invited these now-nonpaying tenants to possess your properties, so you can't say that moratoria allowing them to remain rent-free has taken your right to exclude. For an example of that thinking, see here.
But we think the analysis should be more like the Oklahoma Supreme Court applied here. Yes, property owners may have initially invited tenants to possess and occupy their properties, but that permission was subject to two conditions: first, the continuing payment of rent; and second, the expiration of the original permission after a certain time (the expiration of the lease, for example). So it isn't so much the right to exclude that is being interfered with, but some other right (the right to recover property, the right to re-possess it, or maybe a "reverter").
Snow v. Town of Calumet, No. 119,748 (Ok. June 21, 2022)
