DD 3/7 Claims for Pre-Purchase Inverse Condemnation Damage EMINENT DOMAIN; INVERSE CONDEMNATION: Landowner may not recover for inverse condemnation injury arising from conditions on property caused by government activity prior to landowner's acquisition of property, if such conditions are known to or discoverable by landowner at time of purchase. Hoover v. Pierce County, 903 P.2d 464 (Wash. Ct. App. 1995). Under certain circumstances, the injurious flow of water upon a person's land will support an inverse condemnation claim. A municipality may not collect surface water and channel such water and deposit it on private property where it causes damages without compensation to the landowner for such damage, as such an action will constitute a constitutional taking of property as a permanent or recurring invasion of private property.

In this case, however, the court held that the purchasers of the property had knowledge or should have had knowledge of the flooding problems caused by a county road since the condition was in existence at the time the property was purchased. A purchaser may not recover for a taking prior to his ownership, but he may recover damages for any takings that occur after his purchase of the land. The right to damages for an injury to property is a personal right belonging to the landowner and does not pass on to a subsequent purchaser unless landowner expressly conveyed such right to the purchaser. Thus, in order to assert a cause of action based on new taking, it must be shown that the government agency took additional action after the new purchaser acquired title to the property, which government action caused a measurable decline in market value of the subject property.

Comment 1: Of course, where the conditions affected the market value of the property, then it would seem inappropriate for the buyer to get the discounted price and also the claim against the government. Such claim should remain with the seller. Of course, it would be wise for the parties to document the discount. But where the conditions, or their impact on value, are not actually known to the parties, even though "discoverable" then the outcome in this case absolves the government of responsibility for a loss that the buyer actually has sufferred.

Comment 2: Would the outcome have been different if the prior owner had assigned to the present owner the right to recover for the taking? What if the documents had contained a general assignment of all rights, known and unknown for inverse condemnation damages caused by governmental action or inaction? The editor commonly includes an assignment of rights held by the seller against third for defective conditions in the property, known or unknown, existing or later appearing, but the editor's assignment is intended primarily for claims against contractors and materials suppliers. Would it be wise or effective to amend this boilerplate?

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