Fifth Amendment - Takings Clause

Question 1

Fifth Amendment - Takings Clause

Answer 1

The Fifth Amendment Takings Clause, applicable to states through the Fourteenth Amendment, prohibits the government from (1) taking (2) private property (3) for public use (4) without just compensation.

Question 2

Per Se Taking

Answer 2

A per se taking is almost always found when the government (1) actually appropriates, destroys, or permanently physically invades property, or (2) permanently deprives an owner of all economic value, requiring land be left substantially in its natural state.

Question 3

Partial Taking

Answer 3

Property regulation does not require compensation. The difference between a taking and regulation depends on the degree of government interference. A regulation constitutes a partial taking if a balancing test indicates a taking.

Question 4

Balancing Test

Answer 4

Courts apply a three factors balancing test to determine whether a regulation constitutes a taking: (1) economic impact of the regulation on a property owner, (2) extent the regulation interferes with an owner’s reasonable, investment-backed expectations regarding property use, and (3) character of the regulation, including the degree it benefits society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates the owner’s property ownership attributes (i.e. right to exclude).

Question 5

Private Property

Answer 5

A person with a real, intangible, or tangible personal property interest may challenge an unconstitutional taking.

Question 6

Public Use

Answer 6

A government’s exercise of its eminent domain power is valid so long as the takings is (1) rationally related to (2) a legitimate government interest.

Question 7

Just Compensation

Answer 7

Once a court determines a taking of private property for public use, it can (1) compensate the owner the fair market value of the property, or (2) terminate the taking and pay the owner for damages resulting from the taking.