Also known as: per se takings · per-se taking · per-se takings · categorical taking
Written by attorneys · grounded in primary & secondary sources — see below
An automatic category of taking under the Fifth Amendment's Takings Clause that arises when the government effects a permanent physical occupation of property or imposes a regulation that deprives an owner of all economically beneficial use of land. Such actions require just compensation without application of the Penn Central balancing test unless background principles of nuisance or property law already prohibited the use at the time of acquisition.
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Pierre Poulin purchased two oceanfront lots intending to build homes. After his purchase a state coastal council enacted rules barring any permanent habitable structures on the lots. The rules left the parcels with no economically beneficial use. A court treats the rules as a per se taking because they eliminate all productive value without reference to background nuisance principles.
Patricia Patel owned several parcels around a lake and planned immediate construction. A regional planning agency imposed a thirty-two-month moratorium on all development while it studied environmental impacts. The moratorium delayed but did not permanently eliminate all economic use. A court declines to apply per se treatment and instead weighs duration, planning purpose, and owner expectations.
Perry Pratt and neighboring farmers obtained county approval to operate a large hog confinement facility. A state statute granted the facility immunity from nuisance suits brought by adjacent owners. The immunity effectively transferred an easement allowing odors and runoff to cross the neighbors' land. A court holds the immunity provision effects a per se taking by appropriating the neighbors' right to exclude.
Phoebe Park owned a mobile home park and leased pads to tenants. A city ordinance capped pad rents and permitted tenants to sell their homes in place while transferring the lease. The ordinance prevented Phoebe from raising rents to market levels or evicting tenants upon sale. A court analyzes the measure under regulatory rather than per se physical taking doctrine because no physical occupation was compelled.
Premier Manufacturing owned a large apartment building. A state statute authorized a cable company to install wires and boxes across the roof and into individual units. The company performed the installation without the owner's consent and paid only a nominal fee. A court classifies the installation as a per se taking because it constitutes a permanent physical occupation however small.
Peak Performance grew raisins and was required each year to deliver a percentage of its crop to a government reserve pool. The government took title to the raisins and could sell or dispose of them while the grower retained only a contingent interest in any net proceeds. A court holds the reserve requirement a per se taking of personal property because the government physically appropriated the crop.
A per se taking occurs when the government effects a permanent physical occupation or a regulation that eliminates all economically beneficial use of land. In those situations compensation is required without balancing the Penn Central factors. Other regulations that merely diminish value or restrict some uses are evaluated under the multi-factor Penn Central test.
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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…
…installation of a cable on a rooftop is not the type of physical invasion that this Court has previously held to constitute a per se taking
…rule applied, the Ninth Circuit held that because the regulations had only a temporary impact on petitioners' fee interest, no categorical taking
…that the Escondido ordinance authorizes a permanent physical occupation of the landlord’s property and therefore constitutes a
…action resulting in the condemnation or the imposition of certain specific property interests constitutes automatic or per se takings
No. A temporary moratorium that denies all economic use for a limited period is not automatically a per se taking. Courts instead examine duration, government planning purpose, owner expectations, and effects on value to decide whether fairness requires compensation.
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Yes. When a regulation grants third parties a recurring legal right to enter private property, even for limited hours on a scheduled basis, the government has appropriated the owner's right to exclude. That recurring invasion is treated as a per se physical taking requiring compensation.
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Yes. The Takings Clause applies to both real and personal property. When the government physically appropriates personal property such as crops, inventory, or financial instruments, the appropriation constitutes a per se taking that requires just compensation.
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