United States v.

0.073 ACRES OF LAND 705 F.3d 540 (5th Cir. 2013)

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Nature of the Case

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Facts

Mariner's Cove is a residential community consisting of fifty-eight townhomes. The Mariner's Cove Townhomes Association (D) is a homeowner's association and non-profit corporation that provides residential services to the townhouses in Mariner's Cove. D periodically collects assessments from each of the fifty-eight property owners pursuant to the 'Declaration of Servitudes, Conditions, and Restrictions of Mariner's Cove Townhomes Association, Inc.,' which was recorded on July 28, 1977, and created servitudes and covenants, as well as other conditions and obligations that run with the land. Each owner pays a proportionate 1/58 share of the expense of maintenance, repair, replacement, administration, and operation of the properties in Mariner's Cove. After Hurricane Katrina, the Army Corps of Engineers began to construct an improved pumping station at the 17th Street Canal. It determined that it needed to acquire fourteen of the fifty-eight units in Mariner's Cove to facilitate its access to the pumping station. D claimed that it had an interest in those properties based upon the rights and obligations conferred by the Declarations. P filed condemnation actions against each of the fourteen properties. After the government took possession of the properties, D filed an answer to the government's complaints in condemnation seeking an annual or a one-time payment compensation. P filed a motion for judgment on the pleadings in that the losses MCTA claimed were not compensable under the Fifth Amendment because the losses were merely incidental to the taking, as D had no ownership interest in the fourteen properties themselves. The district court granted P's motion. The district court found that d had no present possessory interest in the condemned properties. D appealed.