The "taking" clause

Question 1

Covered property

Answer 1

The fifth amendment provides that private property may only be taken for public use and the government must pay just compensation.

This rule is applicable to the states via the 14th amendment.

Note that the taking clause is not a source of power for taking, but rather is a limitation.

Question 1

In general

Answer 1

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. 

Question 2

Is there a taking? - generally

Answer 2

The crucial issue is whether governmental action is a taking or merely a regulation. Taking requires payment of just compensation where a regulation does not. There’s no clear cut formula for making this determination, but follow the general guidelines.

Question 3

Is there a taking? - confiscation or occupation

Answer 3

A taking will be found if there is:

A confiscation of a person’s property

Or

A permanent or regular physical occupation of a persons property by the government

Question 4

Is there a taking? - confiscation or occupation - temporary occupations

Answer 4

Temporary occupations by the government may also be taking, depending on factors like the degree of invasion, the duration, the governments intention, the foreseeability of the result, the character of the property, and the interference with the use of the property. 

Question 5

Is there a taking? - confiscation or occupation - exceptions - development exception

Answer 5

Municipalities often attempt to condition building or development permit on a landowners 1) conveyancing of title to part of the property to the government or 2) granting the public and easement to access the property.

These conditions constitute taking unless 1) the government can show there is an essential nexus between the condition and the proposed development (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.

Question 6

Is there a taking? - confiscation or occupation - exceptions - emergency exception

Answer 6

The taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to public emergency, such as war. 

Question 7

Is there a taking? - use restrictions (regulatory takings) - denial of all economic value of land

Answer 7

If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to taking unless principles of nuance or property law makes the use prohibit. For example, a regulation prohibiting any building on the land.

Question 8

Is there a taking? - use restrictions (regulatory takings) - denial of all economic value of land - temporary denials

Answer 8

Temporarily denying an owner of all economic use of property does not constitute a per se. Instead, the court will carefully examine and weigh all the relevant circumstances to determine whether fairness and justice require just compensation.

Factors: The planners, good faith, the reasonable expectations of the owners, the length of the delay, the delays actual effect on the value of the property, and so long.

Question 9

Is there a taking? - use restrictions (regulatory takings) - denial of all economic value of land - decreasing economic value

Answer 9

Generally, regulations that merely decrease the value of property, like prohibiting the most beneficial use, do not amount to if they leave an economically viable use for the property.

The court will consider. The government interest sought to be promoted, the demolition and value to the owner, and whether the regulation substantially interferes with distinct, investment backed expectations of the owner. 

Question 10

Public use limitation

Answer 10

If the governments action is rationally related to a legitimate public purpose, like health, welfare, safety, economic, or aesthetic reasons, the public use requirement is satisfied. Authorize taking by private enterprises are included if they work to the public advantage, like railroads or public utilities. 

Question 11

Just compensation - generally

Answer 11

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. Increases in value to the owners remaining property as a result of the taking are not considered.

Question 12

Just compensation - inverse condemnation

Answer 12

When the government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation. When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to 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. 

Question 13

Takings vs regulations

Answer 13

Takings:

Condemnation of land to build a highway
Creating public access easements on private property
Abolishing inheritance rights

Regulations:

Zoning ordinances that merely prohibited the most beneficial use of the property
Ordering destruction of diseased trees
Landmark ordinances generally