Also known as: actual takings · physical taking
Written by attorneys · grounded in primary & secondary sources — see below
A physical appropriation of private property by the government that requires just compensation under the Takings Clause. The appropriation occurs when the government seizes title, possession, or a recurring right of access to the property, even if the invasion is temporary or intermittent.
Artemis Logistics operates a freight depot. A port authority rule grants environmental organizers recurring access to the secure yards for two hours every other day. The organizers enter the property on schedule for several months. The rule effects an actual taking because it appropriates a continuing right of physical invasion.
Ariana Azizi owns an apartment building. The city requires her to permit a cable company to install and maintain wires on the roof. The installation occupies a small portion of the structure permanently. The mandate constitutes an actual taking of the space occupied by the wires.
Select any source to read its text and confirm it supports the definition.
Austin Abbott manufactures refrigerators. A federal program compels him to deliver twenty-five percent of each month's output to a government reserve without immediate payment. The agency takes title and possession of the units. The required delivery amounts to an actual taking of the personal property.
Adam Anderson owns beachfront lots. A state statute prohibits all construction on the parcels. The ban leaves the land without any economically viable use. The restriction does not constitute an actual taking because it limits use rather than appropriating a physical interest in the property.
Alliance Holdings owns an apartment complex. A city ordinance caps rents far below market levels. The owner retains title and possession but loses substantial economic return. The cap does not amount to an actual taking because it regulates use rather than appropriating the property itself.
Amber Alonzo owns a mobile home park. A city rule limits rent increases and restricts eviction of tenants. The owner keeps title and control of the land. The restrictions do not constitute an actual taking because they adjust economic relations without physical appropriation.
An actual taking occurs when the government physically appropriates property or a right of access. A regulatory taking occurs when a restriction on use leaves the owner with no economically viable use or imposes burdens that require compensation under a balancing test. The distinction turns on whether the government seizes possession or merely limits how the owner may use the property.
Supporting sources
Yes. When a regulation grants third parties a recurring right to enter private property, even for limited hours on a fixed schedule, the government appropriates an easement-like interest. The recurring character of the invasion triggers per se treatment regardless of the brevity of each visit.
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No. When the government compels delivery of a specific portion of goods to a government-controlled reserve, the physical appropriation itself constitutes an actual taking. The owner need not show that the entire business has been rendered valueless.
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No. The government effects an actual taking when it takes title and possession of specific property. Retention of only a contingent interest in future sale proceeds does not convert the appropriation into a mere regulation.
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…that a permanent physical occupation, no matter how slight, effects a taking is wholly consistent with this principle. A physical taking entails a certain amount of "singling out." Consistent with this principle, physical occupations by third parties are more likely to effect takings than other physical occupations. Thus, a…