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Real Estate Encyclopedia | Property Law Dictionary | Real Estate Terms | Meanings & Definitions |      Feb 16, 2019


Derived from the Fifth Amendment to the Constitution, which states that no private property shall be "taken for public use, without just compensation". A provision that has been held to apply also to the state governments through the Fourteenth Amendment (no state shall deprive a person of property, "without due process of law") (Chicago, Burlington, and Quincy R.R. Co. v. Chicago, 166 US 226, 17 S Ct 581, 41 L Ed 979 (1897)). In this context, the word 'taken' has been held to mean the deprivation of the rights of an owner, rather than the accretion of a right or interest to the state.

'Taking' may be the actual removal of the right to property; government–approved "permanent physical invasions of property", Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 102 S Ct 3164, 73 L Ed.2d 868 (1982); or a complete deprivation of all economically viable use of a property (Lingle, Governor of Hawaii v. Chevron U.S.A. Inc., 363 F.3d 846 (2005); Nollan v. California Coastal Comm'n, 483 US 825, 107 S Ct 3141, 97 L Ed.2d 677 (1987); Cf. Palazzolo v. Rhode Island, 533 US 606, 617, 21 S Ct 2448, 150 L Ed.2d 592 (2001)). Unconstitutional taking may also arise when an owner is deprived of a core right or estate in land, such a right to devise land to another (Babbitt v. Youpee, 519 US 234, 17 S Ct 727, 136 L Ed.2d 696 (1997)); or a significant removal, destruction or limitation of the vested right to use private property, as with the requirement that a private lagoon be made available to the general public (Kaiser Aetna v. United States, 444 US 164, 175, 100 S Ct 383, 390, 62 L Ed.2d 332 (1979); Hilltop Basic Resources, Inc., State ex rel. v. City of Cincinnati, 118 Ohio St.3d 131, 886 NE.2d 839 (Ohio 2008)—"substantially and unreasonably" prohibiting access to a public highway a compensatable taking, even though the owner was not deprived of all viable use). "Government action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking", United States v. General Motors Corp., 323 US 373, 65 S Ct 357, 89 L Ed 311, 318, 156 ALR 390 (1945). However, the normal exercise of police power does not amount to a 'taking'; it is merely an acceptable form of government 'regulation' (Berman v. Parker, 348 US 26, 75 S Ct 98, 99 L Ed 27 (1954)).

'Public use' may be more extensive than merely a State purpose. Although it does not extend to taking land merely to transfer it to another private party (Taylor v. Porter, 4 Hill 140 (NY Sup Ct 1843); Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (NJ Super 1998); Franco v. National Revitalization Corporation, 930 A.2d 160 (DC 2007)), it may extend to the taking of property for economic development or for a redistribution of benefits when such taking is for a "public purpose", and is part of a plan that will bring appreciable benefit to the community (Hawaii Housing Authority v. Midkiff, 467 US 229, 245, 104 S Ct 2321, 81 L Ed.2d 186 (1984); Kelo v. City of New London, 545 US 469, 125 S Ct 2655, 162 L Ed.2d 939 (2005)—"it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future 'use by the public' is the purpose of the taking", at ??; Goldstein v. Pataki, 516 F.3d 50 (2d Cir.), cert. denied, 128 S Ct 2964 (2008); Goldstein v. New York State Urban Dev. Corp., 13 NY.3d 511 (2009)—state constitution permits "the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas". Cf. County of Wayne v. Hathcock, 684 NW.2d 765 (Mich Ct App 2004)—unlike Kelo not accepting "economic development" as "public use". It may even extend to the taking of a commercial property that is 'blighted' because of its proximity to a residential purpose (Housing and Redevelopment Auth. ex rel. City of Richfield v. Walser Auto Sales, Inc., 630 NW.2d 662 (Minn App 2001), cert. denied, 123 S Ct 437 (2002) ). In 2006 an Executive Order 13406 "Protecting the Rights of the American People" was issued to the effect that "It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken", s. 1. A number of exceptions are provided in the Order, but these do not counter the principle of preventing taking that is solely in the "economic interest of private parties".

On the other hand, many states have limited their own ability to take property purely in order to stimulate economic development, and some states accept that a property may not be acquired as part of a comprehensive development, unless the property is 'blighted' or a threat to public heath or safety (Norwood v. Horney, 853 NE.2d 1115 (Ohio 2006)—taking non-blighted property for economic development not a public use under Ohio Constitution). See also area concept, blight, eminent domain, exaction, historic sites, etc., inverse condemnation.

Bibliographical references:

Judge Harold L. Lowenstein. Redevelopment Condemnation: A Blight or a Blessing upon the Land? (2009) 74 Mo L Rev 301.
Anno: 57 L Ed.2d 1254, 89 L Ed.2d 977: Supreme Court's View—Just Compensation—Taking Property.
Anno: 21 ALR6th 261: Takings: Public Use After Kelso.
David L. Callies. Takings: Land, An Introduction and Overview (2002) 24 Univ of Hawaii L Rev 441.
J. Dukeminier & J.E. Krier. Property (Casebook series) (4th ed. Frederick, MD: 1998), Ch. 12 'Eminent Domain and the Problem of Regulatory Taking'.
S.J. Eagle. Eminent Domain Use and Abuse: Kelo in Context. Chicago: ABA Publications, 2006, downloadable pdf.
J.D. Eaton. Real Estate Valuation in Litigation (2nd ed. Chicago: 1995), Ch. 17 'Inverse Condemnation and Regulatory Taking'.
M. Gitelman et al. Land Use: Cases and Materials (6th ed. St. Paul, MN: 2003), Ch. IX, Sec. 2 'Regulatory Takings'.
S.W. Johnson et al. Property Law: Cases, Materials and Problems (2nd ed. St. Paul, MN: 1998), pp. 802–68.
J.C. Juergensmeyer & T.E. Roberts. Land Use Planning and Development Regulation Law (St. Paul, MN: 2003), Ch. 9, Sec. 2 'The Taking Issue'
L.A. Malone. Environmental Regulation of Land Use (St. Paul, MN: Loose-leaf), Ch. 14 'Development Rights and the Taking Clause'.
T.W. Merrill and H. Smith. Property: Principles and Policies (New York: 2007), Ch. XII 'Takings'.
P.E. Salkin. Zoning and Planning Law Handbook (St. Paul, MN: 2007), Part 2 'Takings'.
Prof. Ilya Somin. The Limits of Backlash: Assessing the Political Response to Kelo, 93 Minn. L. Rev. 2100 (2009).
Anderson's American Law of Zoning (4th ed. Deerfield, IL: 1996, with updates), Ch. 3A 'The "Taking" Issue and the U.S. Supreme Court'.
26 Am.Jur.2d., Eminent Domain (Rochester, NY), §§ 157–69.
6 Powell on Real Property (Albany, NY: ©1997- ), Ch. 79B 'Takings and Injuries to Real Property without Just Compensation'.
9 Thompson on Real Property (2nd ed. Charlottesville, VA: ©1994- ), §§ 80.05—80.06.
S.J. Eagle. Regulatory Taking (2nd. ed. Newark, NJ: 2001, with cumulative supplements).
L.S. Underkuffler. The Idea of Property: Its Meaning and Power (Oxford: 2003), Ch. 4(i) 'The Takings Clause Revisited'.

(Terms in bold are defined and explained in detail in the Encyclopedia.)

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