Taking Clause (Module 10)

Question 1

5th Amendment Taking Clause

Answer 1

Applicable to the states via the 14th; provides that private property may only be taken for:

1) public use (broadly construed, rationally related to legit public purpose)
2) just compensation (fair market value at the time of the taking)

Covers real property, personal property, and certain intangibles like attorney trust accounts and trade secrets (but not welfare benefits)

Question 2

Taking versus Regulation

Answer 2

Q is whether the gov action is a taking (requiring just compensation) or a regulation which doesn’t req compensation

A taking is a confiscation of a person’s property or a permanent or regular physical occupation

Question 3

Temporary Occupations (Taking Clause)

Answer 3

Can amount to a taking depending on factors like:

• duration
• degree of invasion
• gov’s intention
• foreseeability of a result
• character of the property
• interference with the use of the property

Question 4

Developmental & Emergency Exceptions to Taking Clause

Answer 4

DEVELOPMENTAL
1) conveying title to the gov (e..g, to be used as streets)
2) granting an easement for public use

Will not require compensation is there is:

a) an essential nexus bt property and the condition (relates to legit gov interest)
b) adverse impact is proportional to the loss cause to the property owner

EMERGENCY
Even if it’s a complete and permanent deprivation if it’s made pursuant to public emergency such as war

Question 5

Regulatory Takings (Denial of All Economic Value)

Answer 5

If gov denies landowner PERMANENTLY DENIES ALL ECONOMIC viable use of their the land it’s a taking

Question 6

Regulatory Takings (Temporary Denial of Economic Use)

Answer 6

if gov TEMPORARILY DENIES owner all economic use will use factors to determine if “fairness and justice” requires just compensation (rxble expectations of owner, good faith of planner, length of delay, etc.)

Question 7

Regulatory Takings (Decreases Value of Property)

Answer 7

If regulation DECREASES VALUE OF THE PROPERTY of the property it won’t be a taking if there is still an economically viable use (depends on factors like the 1) economic impact 2) investment-backed expectation of the owner and 3) public interest)

Question 8

Inverse Condemnation

Answer 8

When gov uses eminent domain power to take it will condemn the proeprty adn pay the owner just comp

When it’s taken by regulation or occupation without condemnation hearing, the landowner can bring an action for inverse condemnation and if a taking is found then the gov has to either pay just compensation or terminate the reulation and pay for damages