Taking Clause Flashcards
THE “TAKING” CLAUSE
The Fifth Amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation.
Covered Property
Property subject to the Taking Clause includes personal property, real property, and certain intangibles (for example, interest on attorney trust accounts and trade secrets, but not welfare benefits).
A taking will be found if there is
- A confiscation of a person’s property or
- A permanent or regular physical occupation of a person’s property
by the government
Temporary Occupations
Temporary occupations by the government may also be a taking, depending on factors like the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.
Development Exception
Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part of the property to the government (for example, to be used as streets), or (2) granting the public an easement to access the property.
These conditions constitute a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to
a legitimate government interest) and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.
Emergency Exception
A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, such as war.
Denial of All Economic Value of Land—Taking
If a government regulation denies a landowner of all economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
Temporary Denials of All Economic Use
Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances
Decreasing Economic Value—Balancing Test
Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property. The Court will consider (1) the government interests sought to be promoted; (2) the diminution in value to the owner; and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
JUST COMPENSATION
Just compensation is measured by the fair market value of the property taken at the time of the taking, and it’s based on the loss to the owner.
Inverse condemnation
When property is taken by occupation or regulation without condemnation proceedings. If the court determines that the government action amounted to a taking, the government will be required to either: Pay the property owner just compensation for the property, or Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (that is, temporary taking damages).
