PER CURIAM:
In this eminent domain case, Appellant Mariner's Cove Townhomes Association appeals the district court's grant of judgment on the pleadings for the United States. The district court held that the Association was not entitled to just compensation for the diminution of its assessment
Mariner's Cove Development ("Mariner's Cove") is a residential community consisting of fifty-eight townhomes located near Lake Pontchartrain and the 17th Street Canal. The Mariner's Cove Townhomes Association ("MCTA") is a homeowner's association and non-profit corporation that provides residential services to the townhouses in Mariner's Cove. In exchange for the services provided, MCTA 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." ("Declarations"), which was recorded on July 28, 1977, and created servitudes and covenants, as well as other conditions and obligations that run with the land. The Declarations provide that each owner of a lot in Mariner's Cove pays a proportionate 1/58 share of the expense of maintenance, repair, replacement, administration, and operation of the properties in Mariner's Cove.
Mariner's Cove suffered substantial damage from Hurricane Katrina. After Katrina, the United States Army Corps of Engineers ("Corps") began to repair and rehabilitate the levee adjacent to Mariner's Cove, and began to construct an improved pumping station at the 17th Street Canal. The Corps later determined that it needed to acquire fourteen of the fifty-eight units in Mariner's Cove to facilitate its access to the pumping station.
While the government was negotiating the acquisition of those properties with their owners, MCTA claimed that it had an interest in those properties based upon the rights and obligations conferred by the Declarations. Specifically, MCTA claimed that it was entitled to just compensation for the loss of its right to collect assessments on the properties, as set forth in the Declarations. The government reached agreements with each of the landowners for the purchase of the fourteen properties, but did not resolve MCTA's claim.
In June 2009, the government filed condemnation actions against each of the fourteen properties. The government named MCTA as a purported owner in each proceeding based on MCTA's claimed interest. The district court issued an order in each proceeding granting the United States possession of the fourteen properties. It later consolidated the condemnation actions.
After the government took possession of the properties, MCTA filed an answer to the government's complaints in condemnation.
The district court granted the government's motion, and consequently it dismissed MCTA's motion as moot. The district court found that "once the declaration of taking and the deposit for just compensation are filed, the property vests in the United States under the Declarations of Takings Act," and all existing possessory and ownership interests not specifically excepted are extinguished. Because the interests alleged by MCTA were not excepted, the district court found that MCTA had no present possessory interest in the condemned properties. The district court then turned to the question whether MCTA's interest in the assessments prior to the governmental taking was compensable under the Takings Clause.
Observing that this circuit has not ruled whether the diminution of an assessment base is a compensable loss under the Takings Clause, the district court considered the case upon which MCTA chiefly relies: Adaman Mutual Water Co. v. United States, 278 F.2d 842 (9th Cir.1960). The district court ruled that MCTA failed to show that its interest was compensable because Adaman was inapposite, and because MCTA did not cite any case adopting the Adaman holding other than one factually similar to Adaman. Finally, the district court gave two reasons why Louisiana state law does not disturb the court's ruling that MCTA's interest was not compensable: (1) Louisiana courts have not "addressed whether building restrictions that require affirmative action, or building restrictions in general, are a compensable property interest," and (2) "federal law controls on the issue of compensability."
The district court entered its judgment on November 18, 2011, and MCTA timely filed a notice of appeal.
We review de novo a grant of judgment on the pleadings under Federal Rule of Civil Procedure 12(c). United States v. Renda Marine, Inc., 667 F.3d 651, 654 (5th Cir.2012). We look only to the pleadings and accept all allegations contained therein as true. Id. The nonmovant "must plead `enough facts to state a claim to relief that is plausible on its face.'" Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Pleadings should be construed liberally, and judgment on the pleadings is appropriate only if there are no disputed issues of material fact and only questions of law remain." Brittan Commc'ns Int'l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir.2002). "The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Id. (quoting Hughes v. The Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001)).
This case presents a question of first impression in this circuit: whether the federal government must provide just compensation under the Takings Clause of the
The Takings Clause of the Fifth Amendment provides that private property shall not be taken for public use without just compensation. "The critical terms are `property,' `taken' and `just compensation.'" United States v. Gen. Motors Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 89 L.Ed. 311 (1945).
Discussing the Constitution's use of the term "property," the General Motors Court stated:
Id. at 378, 65 S.Ct. 357 (footnote omitted). "Though the meaning of `property' ... in the Fifth Amendment is a federal question, it will normally obtain its content by reference to local law." United States ex rel. Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 279, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943); see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) ("[W]e are mindful of the basic axiom that `[p]roperty interests... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" (second and third alterations in original) (quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (internal quotation marks and citation omitted))). Thus, Louisiana law governs whether MCTA's right to collect assessments is a property interest. See United States v. 131.68 Acres of Land, 695 F.2d 872, 875 (5th Cir.1983).
The General Motors Court also expounded on the meaning of the term "taken" as it appears in the Takings Clause:
323 U.S. at 378, 65 S.Ct. 357. Contrary to the government's assertion at oral argument, we understand takings analysis to be centered on the deprivation of a former owner's property interest, and not on the accretion of that interest to the government. The Supreme Court in General Motors emphasized that a constitutional taking only occurs with respect to property, and not with collateral, non-property interests:
Id. In short, the government is required to provide just compensation if the interest for which compensation is sought is a property interest or right, and that interest has actually been taken.
This case turns on whether MCTA's right to collect assessments is a compensable property right under the Takings Clause. This question has two parts: whether the right to collect assessments is a property right, and if so, whether it is compensable under the Takings Clause.
We begin by addressing whether MCTA's right to collect assessments is property. The district court, in its ruling, did not find that this right was not property, and the government has not argued to the contrary. Indeed, there is good reason to find that MCTA's right to collect assessments is property.
Louisiana law suggests that this right is called a building restriction. First, it is necessary to explain what "building restriction" means in the language of Louisiana's civil law system. Under Louisiana law, building restrictions are "incorporeal immovables." La. Civ. Code art. 777. ("[I]ncorporeal immovables" are "[r]ights and actions that apply to immovable things"). La. Civ.Code art. 470. "Immovables" simply means property that is not a "movable." La. Civ.Code art. 448 ("Things are divided into ... movables and immovables."). And "movables" are what the name suggests: "things ... that normally move or can be moved from one place to another." La. Civ.Code art. 471. Thus, "immovables" refers to a broad category of immovable property that includes tracts of land and their component parts. La. Civ. Code art. 462. The modifier "incorporeal" simply means "intangible." See S. Cent. Bell Tel. Co. v. Barthelemy, 643 So.2d 1240, 1244 (La.1994) ("[T]he civilian concept of corporeal movable encompasses all things that make up the physical world; conversely, incorporeals, i.e., intangibles, encompass the non-physical world of legal rights."); see also La. Civ.Code art. 461 ("Incorporeals are things that have no body, but are comprehended by the understanding such as ... servitudes [and] obligations...."). By logical inference from the definitions at hand, an intangible right that applies to a tract of land is an incorporeal immovable.
In Tri-State Sand & Gravel, L.L.C. v. Cox, a Louisiana appeals court confirmed that under Louisiana law, one duty that building restrictions may impose on owners of real property is the affirmative duty to pay assessments. 871 So.2d 1253, 1256 (La.Ct.App.2004). Louisiana statutory law supports recognition of the affirmative duty to pay assessments as a building restriction. See La. Civ.Code art. 778 ("Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan."); Oakbrook
In common law terminology, building restrictions are real covenants.
Having found that MCTA's right to collect assessments is a property interest, we now turn to the question whether it is compensable. One of the government's main arguments on appeal is that the loss of MCTA's assessment base was incidental to the condemnation, and thus barred by the consequential loss rule. We agree, and affirm the district court's judgment on this basis.
In General Motors, the Supreme Court explained the consequential loss rule as follows:
323 U.S. at 379-80, 65 S.Ct. 357 (footnote omitted). The General Motors Court contrasted compensable losses of property ("rights of ownership") with noncompensable losses of interests other than property. In Adaman, the Ninth Circuit briefly described this rule as requiring that "the Government ... pay for all tangible interests actually condemned and for intangible interests directly connected with the physical substance of the thing taken." Adaman, 278 F.2d at 845.
We recognize that the cases the government cites in support of its argument do not concern losses of property. They concern business losses and frustration of contracts. See Mitchell v. United States, 267 U.S. 341, 343, 45 S.Ct. 293, 69 L.Ed. 644 (1925) (destruction of a business growing and canning a variety of corn that grew on condemned land was not a compensable loss); Omnia Commercial Co. v. United States, 261 U.S. 502, 508-09, 43 S.Ct. 437, 67 L.Ed. 773 (1923) (impairment of a commercial steel contract was not compensable); Bothwell v. United States, 254 U.S. 231, 232, 41 S.Ct. 74, 65 L.Ed. 238 (1920) (loss resulting from a sale of cattle below fair market value after the construction of a government dam flooded farmland was not compensable); Hooten v. United States, 405 F.2d 1167, 1168 (5th Cir.1969) (per curiam) (frustration of rent collection contracts resulting from condemnation of tenement properties was not compensable). Nevertheless, we find that the consequential loss rule applies because MCTA's right to collect assessments is a real covenant that functions like a contract and, in the words of the Adaman court, is not "directly connected with the physical substance of the [land]." 278 F.2d at 845.
Neither this court nor Louisiana courts have ruled whether the right to collect assessments, or real covenants generally, are compensable under the Takings Clause.
MCTA's right to collect assessments is an affirmative real covenant: the Declarations provide that landowners in Mariner's Cove must pay assessment fees, which MCTA is entitled to collect. These assessments enable MCTA to maintain Mariner's Cove. But MCTA's right is unlike recognized forms of compensable intangible property, such as easements, in that it is not directly connected with the physical substance of the properties on which the assessments are made. The nature of the covenant between MCTA and the landowners in Mariner's Cove is functionally contractual. But for its inclusion in the Declarations, the real covenant for which MCTA seeks compensation would amount to nothing more than a service contract between the landowners in Mariner's Cove
We believe that recognizing MCTA's right as compensable under the Takings Clause would allow parties to recover from the government for condemnations that eliminate interests that do not stem from the physical substance of the land. This would unjustifiably burden the government's eminent domain power. In addition, if we were to recognize MCTA's right as compensable, we would give special status under the Takings Clause to what essentially is a contract, merely because it appears in a title document. Such a formality alone cannot justify requiring the government to compensate MCTA for the loss of its ability to collect assessments on the condemned properties. In the absence of apposite federal and state law, these concerns guide our decision. Thus, we hold that MCTA's right to collect assessments is not a compensable interest under the Takings Clause, and that MCTA was not entitled to compensation for the loss of its assessment base.
Having set forth our view as to why MCTA's right is not compensable, we address MCTA's main argument: that Adaman is analogous to this case and thus we should apply the Adaman court's holding that the right to collect assessments is compensable. We believe these two cases are sufficiently similar that the Adaman court's reasoning informs our approach to this case. But as applied to the facts of the instant case, we find that the rationale in Adaman compels us to reach the opposite conclusion, namely, that MCTA's right to collect assessments is not compensable under the Takings Clause.
Adaman involved an agricultural project established in Arizona on dry land where surface water for irrigation was unobtainable. 278 F.2d at 843. Underground water from beneath the project lands "had to be pumped and distributed, and to provide this service to the small farms envisioned in the Project, at minimum cost, [Adaman], a mutual, non-profit corporation, was organized." Id. The owners of the land were entitled to one share of stock in Adaman for each acre of land owned. Id. at 843-44. Each share of stock entitled its owner to a prorata share of water. Id. at 844. Both water rights and stock were made appurtenant to the land upon which the water was to be used. Id. Further, under the plan:
Id. No assessment could be made until the land was first cultivated. Id.
The United States brought condemnation proceedings against 8.3 percent of the land area within the project. Id. Adaman sued for compensation for its interest in the assessments, lost in district court, and appealed. Id. at 850. The Ninth Circuit determined that the only question raised on appeal was "whether or not [Adaman was] entitled to be compensated for the loss of a portion of Project land since the remaining area will be subject to increased assessments in the future to pay for the maintenance, replacement and operation of the communal irrigation system." Id. at 844. "In other words," the court wrote,
The Ninth Circuit found that the lower court was wrong to conclude that Adaman had lost no compensable interest in the form of its reduced assessment base. Id. at 850. The Adaman court was careful to note that its opinion rested on "the assumption that the land condemned and taken by the Government had corporate stock appurtenant to it and had also been brought under cultivation," which the court deemed important because "the stock subscription agreement itself created the equitable servitude in favor of other stockholding landowners, and the duty to pay assessments would not arise until the land to which it attached had actually been brought under cultivation." Id. Accordingly, the Ninth Circuit vacated the district court's judgment and remanded for "specific findings of fact on these crucial points." Id. The crux of Adaman's holding was that "under the Fifth Amendment a restrictive covenant imposing a duty which runs with the land constitutes a compensable interest." Id. at 849.
We believe that the Adaman court correctly determined that the "pitfalls of the consequential loss doctrine are avoided" where "a direct connection with the physical substance [of the land] condemned" is established. Id. at 846. Because the subject matter in this case — the right to collect assessments — is analogous to that in Adaman, we find this rule to be applicable to the instant case, and therefore we apply it. However, we reach the opposite result of the Adaman court, and find that the consequential loss rule applies, because this case differs from Adaman in two important respects, both of which evince the absence of a direct connection between MCTA's right to collect assessments and the physical substance of the condemned properties.
First, in Adaman, the water company's right to collect assessments was directly connected to a tangible property right — the right to a prorata share of water — enjoyed by landowners in the agricultural project. MCTA's right to collect assessments does not correspond to a tangible property right of the landowners in Mariner's Cove. It is inaccurate to view both cases as merely involving an exchange of assessment fees for communal services. Whereas the assessment fees that MCTA collected were used to maintain communal structures (e.g., streets), the assessments collected by the water company not only were used to provide a service (irrigation at the lowest possible cost), id. at 847, but also enabled the landowners in the agricultural project to exercise the rights to the water underlying the project lands.
Second, whereas MCTA collects assessments in order to collect trash, maintain community streets, and provide similar services, the water company in Adaman collected assessments in exchange for water that it extracted from underneath the properties burdened by the obligation to pay the assessments. Id. As the Adaman court noted, "the warranty deed and the agreement of sale used by the [original
For the foregoing reasons, we AFFIRM the district court's judgment.
2 Nichols on Eminent Domain § 5.07[4][b], p. 5-370-71.