Guide to Property Rights and Laws in the United States

What can I do if someone enters my home or property without my permission?

Generally this would be considered trespass, and you can sue the trespasser, or possibly press criminal charges against them.

If the trespasser is threatening violence, you may (possibly) be legally justified in using force against them. Some states have “stand your ground” laws, which allows you to use deadly force when you reasonably believe it’s necessary for self-defense, and you are in a place where you are lawfully present. In other states, the “castle doctrine” generally applies, under which a person may have a legal defense for using deadly force against a trespasser.

Can the city tell me what I can and can’t do with my property?

Yes, within limits. They do this through “zoning” and land use laws and the building code.1Euclid v. Ambler

Can I build whatever I want on my land?

No, there are various rules about construction, whether a home or other structure. For building a home, see This Old House’s 5 Construction Laws to Know Before You Build a House.

Can the government seize my property for any reason?

The government generally may take private property for “public use,” which has been interpreted quite broadly by the courts.2Kelo v. City of New London, 545 U.S. 469 (2005) This governmental power is called “eminent domain.”

However, the government must provide “just compensation” for such takings. In the 5th amendment of the U.S. Constitution, it specifically says “private property [shall not] be taken for public use, without just compensation.” Generally the compensation required is “fair market value.”

It is also considered a “partial taking” of property where the government requires an owner to suffer a permanent physical invasion of the property, however minor. This also applies where the government authorizes a private third party to do so. For example, where the government tells a cable company they are allowed to place cables on private property despite the property owner’s objection, the owner must be compensated for this.3Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)

Can the government place significant regulations on my property?

Yes, but if the regulations completely deprive an owner of “all economically beneficial use” of the property, this is considered essentially the same as physically “taking” the property, and the government would then be required to provide “just compensation.” 4Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

Is rent control an illegal “taking” under the Constitution?

No. A group of New York landlords sued over rent control laws, arguing that the combination of rent regulation and long-term occupancy violated the Constitution’s ban on the taking of private property for public use. However, courts ruled against the landlords, and upheld rent control as constitutional. The U.S. Supreme Court declined to take the case, meaning the prior court rulings stand as is.

Should I put my property in an LLC?

Putting real estate in an LLC (Limited Liability Company) can be a sensible decision for various reasons, particularly if you rent out the real estate to others. Here are some potential advantages of using an LLC for real estate ownership:

Risk Management & Liability Protection: One of the primary benefits of an LLC is the limited liability it provides. By placing real estate in an LLC, you create a legal separation between your personal assets and the property. If any issues or liabilities arise, such as lawsuits or debts, your personal assets are generally shielded from the claims against the LLC.

Tax Flexibility: An LLC offers flexibility in tax treatment. This arrangement can allow for more favorable tax planning, deductions, and potential benefits. Speak to an accountant for more details.

Estate Planning and Succession: Transferring real estate to an LLC can simplify estate planning by allowing for easier transfer of ownership interests to family members or other heirs. It provides a structured framework for managing the property’s ownership and allows for the seamless transition of ownership upon the passing of a member.

Privacy and Anonymity: In some cases, using an LLC to hold real estate can provide a level of privacy and anonymity. The LLC’s name can be used in public records, keeping the individual owners’ names out of direct public visibility.

However, it’s important to note that using an LLC for real estate ownership also comes with potential downsides, such as additional administrative requirements, formation and maintenance costs, and potential limitations on financing options. Additionally, legal and tax implications can vary by jurisdiction, so it’s crucial to consult with a qualified attorney or tax professional familiar with the laws in your specific area before making any decisions.

Related Pages

Can the Government Do That?


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