Also known as: categorical taking · per se taking · categorical regulatory taking · per se regulatory taking · Lucas taking
Written by attorneys · grounded in primary & secondary sources — see below
A government action that effects a taking under the Fifth Amendment without case-specific balancing. It arises when a regulation deprives land of all economically beneficial use or when the government authorizes a permanent physical occupation of property. Such actions trigger an automatic duty to pay just compensation unless background principles of nuisance or property law already barred the use.
Corinne Cho buys two oceanfront parcels intending to build homes. A new state law bars any permanent habitable structures on the lots. The restriction leaves the parcels with no economically beneficial use. The total deprivation qualifies as a categorical taking that requires compensation.
Cody Callahan owns vacant parcels around a lake. The regional planning agency imposes a thirty-two-month moratorium on all development while it prepares a new land-use plan. After the moratorium ends, Callahan claims a total taking. The temporary nature of the restriction requires examination of duration, planning purpose, and owner expectations rather than automatic per se treatment.
Select any source to read its text and confirm it supports the definition.
Chloe Chen deposits client funds into a pooled trust account as required by state bar rules. The state legal foundation takes the interest earned on those funds to finance legal services for the poor. The government’s appropriation of the interest constitutes a categorical taking of personal property.
Connor Clark owns an apartment building. A city ordinance requires him to permit a cable company to install equipment on the roof and limits his compensation to a nominal fee. The permanent physical occupation authorized by the ordinance is a per se taking regardless of the equipment’s small size.
Cassandra Cooper owns a mobile-home park. A city rent-control ordinance caps the rent she may charge for pads while allowing tenants to sell their homes at market prices. The ordinance does not authorize a physical occupation of the pads themselves and therefore does not trigger per se treatment.
Camila Cervantes grows raisins. A federal marketing order requires her to surrender a percentage of each year’s crop to a government reserve pool. The government takes title and possession of the raisins. The compelled physical appropriation of personal property is a categorical taking.
A regulation qualifies when it deprives the owner of all economically beneficial or productive use of land. The rule applies unless the prohibited use was already barred by background principles of nuisance or property law at the time the owner acquired the property.
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No. Courts must weigh the duration of the restriction, the government’s planning purposes, the owner’s reasonable expectations, and the effect on property value to decide whether compensation is required.
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Any government-authorized permanent physical occupation, however small, appropriates the owner’s right to exclude and is therefore treated as a categorical taking requiring compensation.
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The rule applies when the government physically appropriates personal property such as crops or inventory. The owner’s retention of only a contingent interest in future proceeds does not prevent the finding of a per se taking.
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…compensation was required. Regulations that deny the owner of land all economically beneficial use of his property constitute a categorical taking for which compensation is required under the Fifth Amendment, unless the prohibited use interests were not part of the owner's title to begin with. The trial court's finding that the…