The Fifth Amendment of the U.S. Constitution includes a provision known as the Takings Clause, which states that "private property (shall not) be taken for public use, without just compensation." This is a very important component of our Constitution that effects all property owners. Some governmental agencies in recent years have implemented laws, rules, policies and procedures that have impacted the quiet enjoyment of the property and the owner’s use of the property which is, in fact, an uncompensated taking. More are being proposed as efforts to redistribute wealth become more commonplace. These often include giving rights to tenants that are adverse to the interest of the property owner with no compensation for their loss(es). Richard B. Sanders, Washington State Supreme Court justice, wrote a treatise about the “Fifth Amendment” wherein he wrote, “Our State, and most other states, define property in an extremely broad sense.” He continued, “Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of the elements of property, to that extent, destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.” Two more statements we find relevant: Founding Father John Adams, “The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” From Nevada’s own Wayne Hage, property rights activist, “If you don’t have the right to own and control property then you are property.” It is so important to those of us living in the free world environment of the United States to understand that you can own real estate and you can enjoy all of the components of the bundle of rights of real estate ownership, as long as you don’t willingly, or unwillingly, let them take them from you. The bundle of rights affords the owner the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition. We take it for granted that we have this with our property ownership because of the Fifth Amendment, but like all of the freedoms we enjoy in these United States, we must work to protect them. What do you do as a property owner when a governmental agency limits your income through rent control? How about restricting what you do with a tenant including eviction for non-payment or giving them preferential treatment to purchase without any free market competition to maximize the owner’s potential sales price for his asset? Temporary implementation of such ideas for emergency such as a pandemic are understandable, but to continue them after the threat has cleared is unconscionable. One must be diligent in protecting private property rights for all of us. If you willingly allow a governing body to make a change that adversely affects you, then you cannot claim an uncompensated taking. If a body such as a HOA makes changes to which you don’t agree that have a negative impact on your, your use of your property and ultimately the value of your property, then you may be the victim of a Fifth Amendment breach. Other factors can come into play so it is best to do your best to avoid such actions gaining any traction. Don’t let others push their agenda to your detriment. Your real property is yours, yours to do what you want with, not what you are told to do with it. That’s why you bought it and that’s why others still aspire to experience the American dream of home ownership without it being given to them. When it comes to choosing professionals to assist you with your Real Estate needs… Experience is Priceless! Jim Valentine, RE/MAX Realty Affiliates, 775-781-3704. email@example.com
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