What Constitutes a Taking

A taking occurs when the government encroaches upon or occupies private land for its own proposed use. Even a minimal permanent physical occupation of real property requires compensation under the takings clause.  For instance, governmental regulation of property can sometimes constitute a taking[i].

Generally, takings claims arise two ways:

  • Physical taking;
  • Regulatory taking.

A physical taking occurs when the government encroaches upon private land for its own proposed use.  A regulatory taking can arise although the government actions do not encroach upon or occupy the property but still affect and limit its use to such an extent that a taking occurs.  Regulatory takings are based on the principle that while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking[ii].

The takings clause is generally held to apply to two types of governmental action:

  • Taking of property by the government’s eminent domain power;
  • Taking of property by inverse condemnation.

The power of eminent domain is an inherent sovereign power. The eminent domain power allows the government to take private property for the benefit of the public after paying just compensation.  Inverse condemnation occurs when government regulation condemns some or all of the use of the property, diminishing the value to its owners to such an extent that it is as if the government had condemned the property[iii].

Inverse condemnation leads to the de facto taking by eminent domain through the state’s power to regulate, whereas a taking by the eminent domain power is an explicit use of the sovereign power[iv].

However, not every acquisition of a private property interest by a state constitutes a taking such as the taxing power, the police power, or the power to purchase property.  The state may acquire private property interests in a manner that does not constitute a taking.  Moreover, when the government acquires such an interest through a power other than its taking power, just compensation is not constitutionally required[v].

[i] Litva v. Vill. of Richmond, 172 Ohio App. 3d 349 (Ohio Ct. App., Jefferson County 2007).

[ii] Ganci v. New York City Transit Auth., 420 F. Supp. 2d 190 (S.D.N.Y. 2005).

[iii] Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206 (D.R.I. 2002).

[iv] Id.

[v] Waiste v. State, 10 P.3d 1141 (Alaska 2000).


Inside What Constitutes a Taking