Most courts allow recovery on the basis of eminent domain, as long as the construction or repair of the public improvement was unlawful, unjustifiably prolonged, or in any other way unreasonable. Eminent domain laws deal with the taking or use of property by the government.

For example, suppose that the government closes off a street for repair, limiting X’s access to his house. If the repair only lasts a day or two, and X still has access to his driveway, it is unlikely X can recover. However, if construction lasts the entire year, and X’s driveway is rendered inaccessible, it is more likely that X should be compensated.

How is This Different from Eminent Domain?

Eminent domain exists when the government physically takes and uses someone else’s property for public purposes. In contrast, when dealing with public improvements or repairs, the effect on private property is more indirect. 

An example would be if the government closed off the sidewalk next to a house as opposed to the house itself.  So, while the government isn’t taking over private property, they may be affecting one’s right to its free use and enjoyment.

What Types of Public Improvements or Repairs Can Lead to Liability?

While the list of situations can vary, several common cases where liability has been found for interfering with private property include:

  • Highway repairs restricting property access;
  • Construction of railways, subways, or other public transportation restricting property access;
  • Repair or construction of sewer and/or water facilities restricting property access;
  • Repair or construction of power or telephone lines restricting property access; and/or
  • Noise, smoke, or dust entering private property because of public improvement or repair.

Lastly, liability may also be found if the interference creates a toxic exposure situation or involves pollution or other similar issues with the property. An example of this is where the government conduct results in water being contaminated on private land.

Can I Recover for Lost Sales or Profit if My Property is a Business?

It depends. While some states and local municipalities allow recovery for lost sales due to public improvement or repair, others do not. In addition, each case may also be different due to the unique nature of land, natural features, and other elements of the property involved. Therefore, it is best to consult local laws regarding this issue.

How Can a Lawyer Help Me?

If public improvement or repair is interfering with the use or enjoyment of your private property, you should consult with a real estate attorney to learn about your legal options. A lawyer can inform you about local eminent domain laws and help you get proper compensation from your local government.