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An Assessment by Property Rights Attorneys

The Supreme Court has had a hard time deciding exactly when land-use regulations become so extreme as to amount to an unconstitutional “taking” of private property. But the uncertainty reached new heights last term, with the Court’s decision in Murr v. State of Wisconsin. In that case, the Court ruled that whether your property is protected by the constitutional ban on takings may depend entirely on what other property you own.

When Bill and Margaret Murr bought a vacation lot on the St. Croix River in 1960, there was no doubt that their ownership rights – including the right to build on the property or sell it – were protected by the Constitution. This remained true when the Murrs gave the lot to their children, and it would still be true today, if the story stopped there.

The family built a cabin on their waterfront lot and used it for vacations and get-togethers. Meanwhile, noticing that the lot next door (the parcel known as “Lot E”) was unowned, Bill and Margaret decided to buy it to hold as an investment. In the fullness of time, they also passed that land on to their children.

Eventually the cabin began to show its age, and the Murrs decided the time had come to sell the vacant lot to finance a rebuilding project. But that’s when they got a nasty surprise. Acting under a little-known state law, St. Croix County advised the family that they couldn’t sell Lot E – because it no longer existed!

When Bill and Margaret deeded Lot E to their children, the government decreed it had been “merged” with the original lot. So while the Murrs still technically held title to the land that had once been Lot E, they couldn’t build on it or sell it as an individual plot of land, as they could have before it was merged.

The family sued, property law attorneys claimed the county’s elimination of their right to sell or build on Lot E amounted to a taking of the property, requiring just compensation under the Constitution. But not so, said the Supreme Court. While Lot E might have been taken if looked at in isolation, what counted was the effect of the merger on the Murrs’ combined ownership of both lots. Since they could sell the larger, “merged” property, or rebuild the cabin on it, nothing had been taken worthy of the Court’s notice.

The most bizarre aspect of the Murr decision is that, if anybody other than the Murrs owned Lot E, and the county told those owners they would not be allowed to develop or sell the property, they could sue and collect just compensation under the Constitution. The same would be true if the senior Murrs had given the first lot to one of their children, and Lot E to another child. The Murrs lost their right to use and dispose of their property as they saw fit simply because title to the two lots wound up being held by the same owners.

As Chief Justice Roberts said in dissent, this sort of rule – one that makes your rights depend on who you are and what you own – “allows the government’s interests to warp the private rights that the Takings Clause is supposed to secure.” One can hope the Court will eventually come to its senses and limit or overrule Murr. But in the meantime, think twice before you buy that vacant lot next door. You may wind up owning far less than what you bought!

The Property Rights Attorneys at Kassouni Law share an unwavering commitment to the protection of Constitutional Property Rights. If you have a property or land use matter you’d like to discuss with one of the property rights attorneys at Kassouni Law, please don’t hesitate to reach us at 877-770-7379. With headquarters steps from the Capitol at 621 Capitol Mall, Sacramento, CA, the property rights attorneys at Kassouni Law will be happy to evaluate your property matter and develop a strategic legal plan of action.

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