Define: Taking

When the government takes someone’s private property for public use, it is known as a taking. However, this can only be done if the owner is fairly compensated. In some cases, the government may also restrict how the owner uses their property, which is also considered a taking. The compensation is typically based on the property’s market value, and sentimental value is not taken into account. The government can only take property if it benefits the public, which has sparked controversy. There are various types of takings, including regulatory takings, which occur when the government regulates how the owner can use their property. If a regulation interferes with the owner’s investment-backed expectations, it may be considered a taking. However, if the regulation is necessary to protect public health, safety, or welfare, it may be justified. The appropriate remedy for a taking is usually just compensation.

Taking refers to the government’s authority to convert private property into public use through eminent domain, as stated in the Fifth Amendment of the United States Constitution. The government is required to provide fair compensation to the property owners. A taking can either involve the actual seizure of property or a regulatory restriction on its use that reaches the point of constituting a taking.

For instance, if the government decides to construct a new highway and needs to acquire land from private property owners, they can use eminent domain to take the land and compensate the owners based on its fair market value. In this case, the government exercises its power of eminent domain and provides just compensation to the property owners. This is an example of an actual seizure of property.

Alternatively, the government may pass a regulation that limits a property owner’s use of their land to the extent that it constitutes a taking. For example, a regulation that prohibits building on a property due to environmental concerns. In such cases, the government uses a regulatory taking to restrict the property owner’s use of their land. If the regulation goes too far and prevents the property owner from economically viable use of their land, it can be considered a taking, and the government must provide just compensation.

Another example could be the government seizing a small portion of a property owner’s land to build a public park. If the property owner argues that this seizure constitutes a taking, they can demand just compensation. The Supreme Court has clarified that even small seizures of property can be considered takings if they involve a permanent physical occupation of the property.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 17th April 2024.