Takings Clause - Fifth Amendment

What does the Takings Clause prohibit?

Taking private property for public use without just compensation.

Where is the Takings Clause found?

In the Fifth Amendment.

Does the Takings Clause give the government the power to take property?

No. It limits how the government may exercise that power.

Does the Takings Clause apply to state and local governments?

Yes, through the Fourteenth Amendment.

What are the three questions in a takings analysis?

Was private property taken? Was the taking for public use? Was just compensation paid?

What kinds of property does the Takings Clause protect?

Real property, personal property, and intangible property.

Can a patent be protected property under the Takings Clause?

Yes. A patent is intangible property.

What is an actual or possessory taking?

A government confiscation or physical occupation of private property.

Can a very small physical occupation constitute a taking?

Yes. The amount of property occupied can be tiny.

What is a regulatory taking?

A government regulation that restricts property use so severely that it constitutes a taking.

When does a regulation that restricts land use constitute a taking?

When it deprives the owner of all economically viable use of the land.

Is every regulation that reduces property value a taking?

No. Generally, it is not a taking if economically viable use remains.

What three factors are considered when a regulation reduces property value but leaves viable use?

The government interest; the economic impact on the owner; and interference with the owner’s distinct investment-backed expectations.

What are distinct investment-backed expectations?

Specific plans for the property supported by an actual investment.

If a town prohibits demolishing a historic inn but allows its continued use, is there necessarily a taking?

No. The owner still has a viable use; apply the three-factor test.

What does “public use” mean in takings law?

A taking rationally related to a legitimate public purpose.

Must the public personally use the taken property?

No. The public use requirement is interpreted broadly.

Can the government take property and transfer it to another private party?

Yes, if the taking serves a legitimate public purpose.

Does taking property solely for a mayor’s personal benefit satisfy public use?

No.

What is the usual measure of just compensation?

The property’s fair market value at the time of the taking.

Is just compensation based on the government’s expected gain from the property?

No. It is based on the owner’s loss, generally measured by fair market value.