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A taking is when the government seizes private property for public use. 

A taking can come in two forms. The taking may be physical, which means that the government literally takes the property from its owner). Or the taking may be constructive (also called a regulatory taking), which means that the government restricts the owner's rights so much that the governmental action becomes the functional equivalent of a physical seizure. 

The power of the government through the use of eminent domain, to take private property and convert it into public use, is referred to as a taking. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners. A taking may be the actual seizure of property by the government, or the taking may be in the form of a regulatory taking, which occurs when the government restricts a person’s use of their property to the point of it constituting a taking. 

Just Compensation Requirement

The Fifth Amendment of the United States Constitution mandates that if the government takes private property for public use, the government must provide "just compensation." In Kohl v. United States, 91 U.S. 367 (1875), the Supreme Court held that the government may seize property through the use of eminent domain, as long as it appropriates just compensation to the owner of the property. In Loretto v. Teleprompter Manhattan CATV Corp. 458 US 419 (1982), the Supreme Court clarified that when the government engages in a taking and implements a permanent physical occupation of the property, it must provide the property owner with just compensation, even if the area is small and the government's use does not greatly affect the owner's economic interest.

Typically, a "just compensation" is determined by an appraisal of the property's fair market value. This means that any sentimental or other value held by the owner will not be considered in calculating compensation. Depending on the size and unique nature of the land, calculating the market value of property can be quite complex. Generally, one determines the fair market value by looking at the sales of similar property to that being taken. In many circumstances, there may not be similar sales under current market conditions to compare with. The property may have some complex considerations such as leasing value that must be considered. This all can make the valuations for fair market value challenging. For more information on calculating just compensation, see this LII article

Public Use Requirement

Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. The Court considered the taking to be a public use because the community would enjoy the furthering of economic development. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose. 

The Kelo decision significantly broadened the government's takings power. This caused significant controversy, and states were quick to act to quell concerns about this expansion of power. In response to Kelo, many states have passed laws which have restricted governments' takings abilities (such as implementing a stricter definition of  what constitutes a "public use," requiring heightened levels of scrutiny to justify an action categorized as a taking, etc).

Types of Takings

Many types of government action infringe on private property rights. Accordingly, the Fifth Amendment's compensation requirement is not limited to government seizures of real property. Instead, it extends to all kinds of tangible and intangible property, including but not limited to easements, personal propertycontract rights, and trade secrets

In United States v. Dickinson, 331 U.S. 745 (1947), the Supreme Court held that even if the government does not physically seize private property, the action is still a taking "when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” 

Land Use Regulation

Many regulatory takings disputes arise in the context of land use regulation. Agins v. City of Tiburon, 447 U.S. 255 (1980), the Supreme Court held that it there is not a requirement for government compensation where such regulations "substantially advance legitimate governmental interests," and as long as the regulations do not prevent a property owner from making “economically viable use of his land.” 

How Much Compensation is Just?

Generally, the government must pay the market value of seized property. There are, however, many exceptions. The government need not compensate a property owner for the portion of the property's value created by that government.

For example, in United States v. Fuller, 409 U.S. 488 (1973), the Supreme Court held that when the federal government condemned a rancher's grazing land, it did not owe compensation for the portion of the land's value derived from its proximity to adjacent, federally owned grazing land.

When is a Regulation a Taking?

While often takings are obvious, some types of government regulations may be hard to classify as a taking or not. For example, if the government required a farmer to kill off its corn due to a spreading disease amongst corn, this arguably could be a taking of property through regulation. Sometimes, a government regulation infringes upon private property ownership to such an extent that the regulation can be considered a taking, thus requiring just compensation. The Supreme Court, over a series of regulatory takings cases, has developed a 4-part test to determine whether a regulation is considered to be a taking. 

  • Is the regulation a taking under Loretto
    • A government regulation is a taking when the government authorizes a permanent physical occupation of real/personal property
  • Is the regulation a taking under Lucas?
    • The regulation is a taking when the regulation causes the loss of all economically beneficial/productive uses of the land, unless the regulation is justified by background principles of property law/nuisance law
  • Is the regulation a taking under Nollan-Dolan?
    • The regulation is a taking if the government demands an exaction that lacks a nexus with a legitimate state interest or lacks proportionality to project’s impacts
      • Exaction – a requirement that the developer provides specified land, improvements, payments, or other benefits to the public to help offset the project’s impacts
  • Is the regulation a taking under the Penn Central balancing test?
    • Here a court will look at 3 factors:
      • The character of the governmental action involved in the regulation
        • If the government's action is a physical action, rather than a “regulatory invasion,” then the action is almost certainly a taking
      • The extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations for the parcel as a whole
      • The regulation’s economic impact on the affected prop owner

Noxious Use 

Even if a government regulation is deemed a taking, it still may be viewed as justified, as long as it meets the noxious use test, also known as the Mugler-Hadacheck test. Under this test, a regulation adopted under the police power to protect the public health, safety, or welfare is not a taking, even if the taking reduces the value of property.

Remedies for Takings

Under First Evangelical (1987), the appropriate remedy for a taking will typically consist of compensatory damages, meaning just compensation. 

Further Reading

For more on eminent domain, see this Cornell Law Review article, this University of Michigan Law Review article, and this New York Law Journal article

[Last updated in December of 2022 by the Wex Definitions Team]