The Research On Real Estate Inverse Condemnation Criteria Of America

There are some relevant provisions of protecting private property rights in each country’s constitutions or other laws. However, each country also makes some provisions that under certain circumstances, the government can limit or even deprive of private property. The certain circumstances include the government executes its police power which can regulate people’s behavior, limit or deprive of the private property without compensation, for the public health, safety, morals or general welfare. Another circumstance is that the government executes its taking right which can expropriate private property with fair compensation and due process for the public interest. The above two circumstances are familiar with us, but there is still another situation that the government executes its police power but causes a similar damage of taking to private property which promotes the development of the inverse condemnation theory. America firstly produced the theory of inverse condemnation and has formed a series of criteria. This thesis tries to build a process framework to apply these criteria through analyzing American typical cases and uses the process framework to inspect our real estate regulations.The thesis is divided into five parts. Part one introduces the blurred gray area between the execution of police power and the protection of private property which is worthy of discussion. It also presents the concept of the police power and inverse condemnation.Part two analyzes American typical cases through the outline of the cases, the verdict, the reasons for judgment, the principles and the development of the concept. It sorts out the real estate inverse condemnation of America into three parts: regulating the real estate property right, attaching conditions when allowing real estate exploitation, forbidding real estate exploitation.Part three builds the criteria process framework on the basis of part two. The first criterion is a serious loss of the property. If there is a serious loss, we go to next criterion of illegal obstruction. If the use of the private property doesn’t constitute an illegal obstruction, we begin to review the aim of executing the police power. If the government cannot improve public interest substantially, the owner can ask for an inverse condemnation. Even if the execution can improve the interest substantially, the owner can still ask for an inverse condemnation for the reason of special sacrifice.Part four reviews our real estate regulations through the criteria process framework of part three and suggests that the owner should get the compensation under certain regulations. Part five is a conclusion part and figures out the thesis does not try to construct a fixed judgment formula but to show a direction for judgment.