January 22, 2019 Substantive Law

The U.S.-Mexico Border Wall: A Unique Project with Unique Real Estate Issues

By Roy R. Brandys, Nicholas P. Laurent, and Blaire A. Knox

Reprinted with permission from Probate & Property, January/February 2019 (33:1), at 36-43. ©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Since Donald Trump began his presidential candidacy in 2015, the idea of a border wall between the United States and Mexico has captured the attention, fascination, and frequently the ire of the American public. What many may not realize is that the United States has been erecting fencing and other physical barriers on the border with Mexico since the mid-1990s. See Borders: The Fence, Georgetown Univ., https://apps.cndls.georgetown.edu/projects/borders/exhibits/show/the-fence/overview. Today, more than one-fourth of the border already contains some sort of barrier structure. See Julia Jacobo and Serena Marshall, Nearly 700 Miles of Fencing at the US-Mexico Border Already Exist, ABC News (Jan. 26, 2017), https://abcnews.go.com/US/700-fencing-us-mexico-border%20exist/story?id=45045054.

One issue commonly glossed over in the national conversation is the need to acquire private property for the border wall and the effect of this acquisition and related infrastructure on the value and utility of the landowner’s remaining land. The Fifth Amendment provides a constitutional mandate requiring the government to pay “just compensation” if private property is taken for public use. U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”). But, for a variety of reasons, including the purported justification of national security, the lack of understanding of the physical characteristics of the border between the United States and Mexico, and a dismissive attitude toward border area landowners, this constitutional obligation frequently has been overlooked.

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