takings

A taking occurs when the government seizes private property for public use. It may be a physical taking, where the government occupies or acquires the property, or a regulatory taking, where government restrictions limit property use so severely that it becomes the equivalent of a physical seizure.

Under the Fifth Amendment of the United States Constitution, the government must provide just compensation when it takes private property. In Kohl v. United States, 91 U.S. 367 (1875), the Supreme Court confirmed the government’s power to take property through eminent domain, so long as just compensation is paid. This compensation is typically based on the fair market value of the property, excluding personal or sentimental value. Valuation can be complex, particularly when the property is unique, leased, or has limited comparable sales.

Courts interpret "public use" broadly. In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court upheld a taking for private development, finding it served a public purpose by promoting economic development. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Court held that a permanent physical occupation of even a small portion of property qualifies as a taking requiring compensation.

Takings extend beyond land. They can involve easements, personal property, trade secrets, and contract rights. In United States v. Dickinson, 331 U.S. 745 (1947), the Court held that a taking occurs when government action significantly limits an owner’s use of property, even without formal seizure. In United States v. Fuller, 409 U.S. 488 (1973), the Court ruled that compensation need not include value derived from government-created benefits, such as proximity to public lands.

Several Supreme Court decisions help determine when a regulation qualifies as a taking:

• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982): A permanent physical occupation is a taking.
• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992): A regulation that eliminates all economically beneficial use of land is a taking unless justified by background principles of property or nuisance law.
• Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), known as the Nollan-Dolan test: A regulation is a taking if it requires exactions lacking a connection (nexus) or proportionality to a legitimate public purpose.
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), known as the Penn Central balancing test: Courts evaluate:
  • The character of the government action, 
  • The interference with reasonable investment-backed expectations, and 
  • The economic impact on the owner.

Even if a regulation amounts to a taking, it may be upheld if it serves a valid public health or safety goal. This is known as the "noxious use" doctrine, drawn from Mugler v. Kansas, 123 U.S. 623 (1887), and Hadacheck v. Sebastian, 239 U.S. 394 (1915) (known as the Mugler-Hadacheck test). For unconstitutional takings, the primary remedy is just compensation, as established in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987).

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 reviewed in June of 2025 by the Wex Definitions Team]

Keywords

• property law
• government
• Fifth Amendment
• constitutional law

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