An Analysis of Condemnee Repurchase Rights Laws in the United States and the Republic of Korea

서지정보

· 발행기관 : 전남대학교 법학연구소
· 수록지 정보 : 법학논총 / 30권 / 3호 / 401 ~ 432페이지
· 저자명 : 프리만, 트로이 크리스찬

초록

Private property rights have long been numbered among some of the most revered human rights and are enshrined in national and international human rights charters. Nevertheless, private property rights are often abused by governments,particularly when they exercise eminent domain powers. One way to assure that eminent domain power is not abused is to assure that it is used to take property only for public use. Condemnee repurchase rights allow those who have had their property taken by government to reclaim it if the condemning authority fails to use the property for its stated public purpose and can protect the public use requirement of reasonable eminent domain laws.
This article explains the need for condemnee repurchase rights in the context of the condemnation practices underlying the development involved in the United States Supreme Court’s 2005 Kelo decision and the ill‐fated Seattle Monorail Project.
The failure of both projects and the injustices to condemnees involved in both demonstrate the need for condemnee repurchase rights. The Seattle Monorail Project, in particular, highlights the extremely negative burden placed on condemnees who are allowed only to re‐purchase condemned land at market prices at public auction. Even though condemnees only lost their property to the condemning authority for a short period of time, a rising real estate market allow the government to claim windfall profits on the backs of ordinary citizens. Before the stark injustices manifest in Kelo and the Seattle Monorail Project are forgotten,jurisdictions across the United States and around the world should make sure their condemnee repurchase laws meet the criteria set forth herein.
After Kelo, over 40 states in the United States of America changed their laws to better protect condemnees. Most of the focus of such laws focused on restricting the ability of government to use eminent domain to acquire private property for private use. Some also addressed condemnee repurchase rights as well.
Remarkably, the State of Washington, the home of the Seattle Monorail Project’s injustices, has failed to enact any post‐Kelo or post‐monorail laws to protect condemnees. While the Washington State’s attorney general did appoint a commission to look at such issues, the legislature has failed to act.
Beyond discussing Washington State’s failures, this article reviews and analyzes the repurchase rights laws (or lack thereof) of a few select jurisdictions in the United States of America – Guam, Nevada and New York, as well as the Republic of Korea, and suggests (i) that condemnee repurchase laws should more uniformly protect condemnees in all jurisdictions and (ii) which provisions of such laws are most favorable to the preservation of condemnee rights while maintaining the government’s ability to properly exercise its power of eminent domain.
Each of the selected jurisdiction’s statutes are analyzed in the context of five fundamental questions: (1) What conditions should trigger a condemnee’s right of first refusal or other repurchase rights? (2) Who has to instigate the reversion or resale procedure, the condemnor or the condemnee? (3) Who instigates the reversion or resale procedure, the condemnor or the condemnee? (4) How long should repurchase rights last and should they be extended for any reason? (5) What should the re‐acquisition price paid by the condemnee be? (6) What impact should (a) improvement or changes on the property or (b) only partial use of condemned property have on a condemnee’s repurchase rights? In the context of the questions raised, major advantages and deficiencies in each of the statutes analyzed are noted and recommendations for improvement are made.

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