Inverse Condemnation in South Carolina:
When the Government Takes Your Property Without Paying
An inverse condemnation is a lawsuit brought by a property owner against a governmental or other entity with eminent domain power when that entity has taken the owner's property without paying just compensation. As the name suggests, this legal procedure—where the landowner initiates the lawsuit—is the inverse of a direct condemnation case, where the government files the condemnation action against the landowner to acquire property.
The following focuses on traditional inverse condemnations, or inverse takings, which occur when a landowner's property has been physically invaded or taken. There also exist what are known as regulatory takings, where the government imposes regulations or other restrictions that interfere with property rights to such an extent that the property can no longer be fully enjoyed. See Byrd v. City of Hartsville, 365 S.C. 650, 656, 620 S.E.2d 76, 79 (2005) ("An inverse condemnation may result from the government's physical appropriation of private property, or it may result from government-imposed limitations on the use of private property.").
In both instances, the condemning authority has not initiated eminent domain proceedings, and none are forthcoming. As a result, the landowner must file a lawsuit against the authority and assert a claim for monetary damages under state and federal con
situational provisions which guarantee that no citizen shall be deprived of property without first being compensated for the taking.
Legal Requirements for an Inverse Condemnation Claim
To establish that an inverse condemnation has occurred, a South Carolina landowner must show "(1) affirmative conduct of a government entity; (2) the conduct effects a taking; and (3) the taking is for a public use." Carolina Chloride, Inc. v. S.C. Dep't of Transp., 391 S.C. 429, 435, 706 S.E.2d 501, 504 (2011). "'[A] plaintiff must prove 'an affirmative, aggressive, and positive act' by the government entity that caused the alleged damage to the plaintiff's property.'" Graham v. Town of Latta, S.C., 417 S.C. 164, 191-92, 789 S.E.2d 71, 85 (Ct. App. 2016) (internal citations omitted).
Failures to act or mistakes by a municipality will not rise to the level of an affirmative, aggressive act necessary to show a taking. Id. Nor will events outside the government's control, even if the physical intrusion is attributable to government infrastructure or utilities. See, e.g., Rolandi v. City of Spartanburg, 294 S.C. 161, 363 S.E.2d 385 (Ct. App. 1987) (as there was "nothing in the record to indicate the backflow in Rolandi's home occurred while the City was engaged in any type of work on the sewer lines[,]" the backflow did not constitute an affirmative, positive act by the City, even though the City owned and operated the line).
However, government work to public property that results in intrusion upon and damage to private property may give rise to an inverse taking.
It has long been recognized in this jurisdiction that the casting of water on adjoining premises by some act of governmental authority in the course of making improvements to a public way constitutes a taking of property in violation ... of the Constitution.
Berry's On Main, Inc. v. City of Columbia, 277 S.C. 14, 15, 281 S.E.2d 796, 797 (1981) (quoting Kline v. City of Columbia, 249 S.C. 536, 155 S.E.2d 597 (1967)).
In Berry's on Main, city workers, as part of a project that involved installing and relocating water pipes and meters, removed a public sidewalk and dug two trenches that led toward the basement of a business. 277 S.C. at 15, 281 S.E.2d at 797. The trenches were left open overnight, and heavy rains that evening resulted in serious flooding which purportedly caused "extensive damages to the premises of the basement and to the new merchandise stored there." Id. The Court found that the removal of the sidewalk was enough to constitute an "affirmative, positive, aggressive act" that resulted in flood waters damaging the property as required for an inverse condemnation claim. Id. at 16, 281 S.E.2d at 797.
Statute of Limitations and Recovery of Attorney's Fees
The statute of limitations for bringing an inverse condemnation claim in South Carolina is three years from the date damage, such as flooding occurs. A landowner that prevails in an inverse condemnation claim, even for temporary takings causing damage, is entitled to recover reasonable attorney's fees and costs pursuant to Section 28-11-30 of the S.C. Code of Laws. See Frampton v. S.C. Dep't of Transp., 406 S.C. 377, 392-95, 752 S.E.2d 269, 277-79 (Ct. App. 2013).
Why You Need an Experienced Eminent Domain Attorney
While it is rare for government entities to physically invade or take land without compensation, it does occur. When it happens, landowners are entitled to pursue remedies for the resulting violations of their constitutional property rights. Successfully prosecuting an inverse condemnation claim requires thorough knowledge of South Carolina eminent domain law, constitutional protections, and the specific legal requirements for proving a taking.
The attorneys at Bybee & Tibbals, LLC have extensive experience representing South Carolina property owners in inverse condemnation and eminent domain matters. If you believe a government entity has taken or damaged your property without paying just compensation, contact our firm for a consultation to discuss your rights and options under South Carolina law.
