The Government Retains Its Right to Enter onto Private Property for Testing and Other Purposes

The California Supreme Court has confirmed the constitutionality of statutes allowing a public entity to enter onto private property for testing and other purposes prior to deciding whether or not to condemn the property. These statutes allow a public entity to apply for a court order permitting pre-condemnation access to property for purposes such as environmental testing and on-site investigations. The scope of this power was called into doubt after a Court of Appeal held these statutes authorized entry under only limited circumstances for innocuous purposes. Otherwise, a public entity needed to file a classic condemnation action prior to entering onto the property. In Property Reserve, Inc. v. The Superior Court of San Joaquin County (July 21, 2016, S217738) ___ Cal.4th ___, the Supreme Court announced that a public entity's compliance with the pre-condemnation statutory procedures was sufficient to allow entry onto property for even extensive environmental and geological testing.

Case Background

As a preliminary step in determining a route for new tunnels or a canal to convey water in the Sacramento–San Joaquin Delta, the State sought entry onto approximately 150 properties for purposes of environmental testing, such as mapping and surveys of site conditions and habitat, and extensive geological testing such as drilling deep holes to determine subsurface conditions. The testing would help the State determine which properties it would need to acquire for the project either through condemnation or voluntary agreements. Numerous property owners challenged whether entry for such extensive activities violated the takings clause of the California Constitution, and they asserted that the statutory entry procedures allowed for only “innocuous entry and superficial testing.” The challenged statutes permit a public entity to apply for and obtain a court order specifying the purpose and conditions of entry and require the posting of a deposit to cover any potential damages. The statutes also allow the owner to seek compensation for any actual damages to the property or for substantial interference with the owner's possession resulting from the entry and testing.

After a multi-day hearing, the trial court determined that the environmental, but not the geological, testing could proceed. It ordered the State to post deposits for potential damages of between $1,000 and $6,000 per property. The Court of Appeal took a narrow view and determined neither testing could occur unless the State filed a traditional condemnation action for a temporary easement. Upon review, the Supreme Court agreed to determine whether the precondemnation entry and testing statutes provide a constitutionally valid procedure for the proposed activities.

Court's Decision

The California Constitution requires that a public entity must pay compensation to property owners when it takes or damages private property.  In its analysis, the Court concluded that the procedure established by the precondemnation entry and testing statutes satisfy the requirements of the California takings clause provided a jury can determine whether the property owner has incurred any damages due to the entry. The statutory procedures allowing for entry prior to filing any condemnation action are not limited to innocuous or superficial activities, but they cover the type of activities the State sought to conduct. The statutory language suggests that the Legislature contemplated the statutes would apply to testing activities that are reasonably necessary to determine whether the public entity should ultimately acquire the property either by condemnation or voluntary agreement. As the Court observed, “[t]he entire purpose of precondemnation entry and testing is to enable the public entity to determine whether or not the property is suitable and should be acquired for a public project and whether a classic condemnation action should be commenced. It is counterintuitive to maintain that the commencement of a classic condemnation action is required before such precondemnation activities may be undertaken.” Thus, the Court concluded that the state constitution's taking clause did not prevent the trial court from allowing the State to enter onto the properties to conduct the environmental and geological testing.

What This Means To You

This case upholds the right of a public entity to enter onto private property for testing and other purposes prior to deciding whether or not to actually acquire the property. The entity must explain the purposes and extent of any testing to the court. The entity must also post a deposit for any damages. Property owners should carefully examine both the stated purpose and the extent of any request to enter their property as well as the adequacy of any deposit. The owners can also seek recovery of any damages they incur, and can request that a jury determine the amount of such damages.


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William Chisum | 916.321.4557

Jennifer Scott | 916.321.4349