Protection of Preexisting Property Rights (Takings)

Question 1

Fifth Amendment/Fourteenth Amendment

Answer 1

The Fifth Amendment provides that private property shall not be “taken” for public use without just compensation (Eminent Domain). This prohibition applies to the states through the Due Process Clause of the Fourteenth Amendment.

Question 2

What is a Taking?

Answer 2

A land-use regulation is a “taking” if it denies an owner all reasonable, economically beneficial uses of his land.

Question 3

Types of Property Rights Protected By Eminent Domain

Answer 3

Eminent domain applies to all property interests not just ownership of a land. (E.g. a non-exclusive profit).

Question 4

What about Regulations that Merely Affect Economic Value?

Answer 4

Courts use a balancing test with the following factors:

• The economic impact of the regulation on the claimant
• The extent to which the regulation has interfered with distinct investment-backed expectations; and
• The character of the governmental action