Real Estate & Property Law

NJ Supreme Court And The "Bizarre Condemnation" - Klumpp v. Borough of Avalon

By Robert Thomas (inversecondemnation.com)

The New Jersey Supreme Court today issued a unanimous opinion in Klumpp v. Borough of Avalon, No. A-49-09 (Jun. 22, 2010), the case the New Jersey Law Journal described as the "bizarre condemnation" after the Appellate Division held that the government can assert inverse condemnation in order to take property without compensation. 

It's a detailed opinion, and we will post more details after we've had a chance to digest it, but here's the bottom line:

• The Borough placed a dune on the plaintiffs' property in 1965, fenced it off to limit public access, and constructed an access path from the street to the beach over the property. A physical taking occurred no later than that date.

• If the government takes property without undertaking eminent domain, the property owner can bring an inverse condemnation action. The statute of limitations for such claims is six years.

• However, equity demands that the property owners are not barred from bringing an inverse condemnation claim. Until 2005, the Borough maintained that no taking had occurred. It was only after the plaintiffs filed suit did the Borough claim it owned the property by adverse possession. Because of the Borough's position, plaintiffs understandably demanded access to their property and filed claims for trespass and ejectment. After finally conceding, in 2005, that a taking occurred forty-three years earlier, the Borough now attempts to hide behind the statute of limitations to claim that plaintiffs have no right to an inverse condemnation action. In these circumstances and in the interest of justice and fairness, plaintiffs must be afforded a remedy for the appropriation of their property for public use.

• Although their property was physically taken in 1965, the government should have provided some other form of notice before, and surely after, the taking. Instead, the Borough sent tax bills to the owner, designated the property as private on town maps, and took various contradictory positions.

• The property owners are therefore allowed to amend their complaint to add an inverse condemnation claim for the value of the property in 1965.

Read the entire opinion here. We live blogged the oral arguments here. Rutgers Law School has the archived oral argument video posted here. The briefs of the parties and amici are posted here.

Full post as published by inversecondemnation on June 22, 2010 (boomark / email).