Taking Clause

Question 1

What does the Taking Clause of the 5A prohibit?

Answer 1

Under the Taking Clause, the govt may only take private property if (a) its for a valid public use and (b) provides just compensation for it.

Question 2

What types of property are covered by the Taking Clause?

Answer 2

personal property, real property, certain intangible property (e.g. interest in trust accounts, trade secrets, but NOT welfare benefits)

Question 3

When is there a “taking of property that triggers the 5A Taking Clause?

Answer 3

When (a) confiscation of a person’s property or (b) permanent or regular physical occupation of person’s property by govt.

(b) can include temporary invasions - look to factors such as degree of invasion, duration, intention, foreseeability, character of property, interference with use

Question 4

What types of takings are excepted from the Taking Clause req’s - i.e. govt need not provide just compensation?

Answer 4

(1) development conditions (e.g. condition developing permits on conveying part of property to govt or granting public easement)

 For this exception to apply, govt must show that (a) there is an essential nexus between the condition and the proposed development (i.e., related to legit govt interest) + (b) the adverse impact is proportional to the loss caused from the owner 

(2) emergency exception - public emergency e.g. war

Question 5

When is a regulation that impacts the economic use of land considered a taking for purposes of the Takings Clause?

Answer 5

(a) if the regulation denies the landowner all economically viable uses of the land – then its a taking (UNLESS the intended use is prohibited)
Note: if its just a temporary denial of economic use, court weighs interests/factors

(b) if the regulation merely decreases the economic value of the land - then apply a balancing test, look to: (1) govt interests sought to be promoted (2) dimunition in value (3) whether regulation interferes with investment-backed expectations of owner (i.e., reliance interests)

Question 6

What is considered “just compensation” for purposes of the Takings Clause?

Answer 6

Fair market value of the land measured at the time of the taking.