Property owners around the country received major wins this year as property rights were upheld and protected in several cases the National Association of REALTORS® (NAR) was involved in that were ruled on by the U.S. Supreme Court (SCOTUS). Legal challenges in support of property rights are an important tool in public policy and advocacy, as rulings have broad regulatory implications around the country.

NAR submitted amicus briefs for two cases decided in Spring 2023 in support of property owners in legal disputes with their states. In Tyler v. Hennepin County, an elderly homeowner who lost her condo to foreclosure, sued the county for keeping the excess proceeds from its sale above the tax debt owed. NAR wrote in support of her entitlement to the surplus equity, arguing that the state statute is an unconstitutional taking of property under the Fifth Amendment. The Court agreed, holding unanimously that the homeowner had a plausible case under the Takings Clause, which requires the government to pay just compensation when acquiring property from private owners for public use.

In the second case, Sackett v. Environmental Protection Agency (EPA), homeowners were prohibited from developing near a lake due to the EPA’s “significant nexus” test for the Waters of the U.S. (WOTUS) rule under the Clean Water Act (CWA), which considered whether waters adjacent to or which impacted nearby “navigable waters” (those explicitly covered under WOTUS) and thus under the EPA’s jurisdiction. SCOTUS’s ruling found that the test was over-broad and proceeded to narrow its criteria. As part of a coalition of other impacted industry groups, NAR sent a brief for the case emphasizing that while the CWA has not changed, the definitions it uses to establish jurisdiction have broadened over the years. The Court agreed and the new definition since established for WOTUS (while still overbroad) is an improvement. (NAR continues to engage on WOTUS, filing another motion with the Court for summary judgment in a Texas case seeking a declaration that the current rule is unconstitutional.)

More recently, NAR contributed to two more unanimous legal victories decided in April 2024. On April 12, the Court ruled in support of property owners in Sheetz v. El Dorado County, and on April 16 they once again ruled for property rights in DeVillier v. Texas. NAR submitted amicus briefs in support of the property owners in both cases.

In Sheetz, the plaintiff sued the state of California over a “traffic impact mitigation fee” imposed by the state before he could build a home on his property, using the argument that it was an illegal taking. The property owner asserted that a previously established takings test (Nollan/Dolan for fees imposed on an individual basis applied, while the state argued that fees established by legislation were excluded from it. The plaintiff prevailed, as the Court ruled that the test can be applied to fees authorized by legislation.

In Devillier, Texas used a stretch of highway for a flood evacuation route by creating a barrier along it to act as a dam. As a result, private property opposite the barrier flooded, causing significant damage. The plaintiff argued that by building the barrier and using his property to store stormwater, the state had effected a taking and owed him just compensation. The Court agreed that the argument was plausible and held that the plaintiff was able to pursue a takings clause case through a cause of action under Texas state law.

NAR’s work to support property rights in these cases demonstrates its commitment to advocating for private property rights through every available avenue. The decisions cited here establish important precedents that will be used in future legal arguments to protect private property rights in this country.