Also known as: per se taking · categorical takings
Written by attorneys · grounded in primary & secondary sources — see below
A category of government actions that automatically require just compensation under the Takings Clause without further inquiry into economic impact or investment-backed expectations. These actions include permanent physical invasions of property and regulations that deprive an owner of all economically beneficial use of land.
Select any source to read its text and confirm it supports the definition.
Paula Pierce purchased coastal acreage intending to build a resort. A state coastal commission then barred all construction on the parcel. Paula sues, claiming the regulation leaves her with no economically viable use of the land. The court treats the complete deprivation as a per se taking that triggers the duty to pay just compensation.
Prism Analytics owns waterfront lots slated for a mixed-use project. The regional planning agency imposes a two-year moratorium while it studies flood risks. Prism argues the pause wipes out all present economic use. The court examines the moratorium's duration, planning purpose, and effect on value rather than applying automatic per se treatment.
Philip Powell operates a large hog facility near Priscilla Parks's residence. A county ordinance grants the facility immunity from nuisance suits. Priscilla sues, contending the immunity imposes an easement-like burden on her land. The court holds that the statutory protection effects a per se taking of her right to be free from the nuisance.
Penelope Price owns an apartment building. A city ordinance requires her to permit a cable company to install equipment on the roof for a nominal fee. Penelope objects that the installation occupies her property. The court classifies the mandated physical occupation as a per se taking regardless of its small size.
Pierce Patterson owns a mobile home park. The city caps rents on the pads while allowing tenants to sell their homes at market prices. Pierce claims the ordinance transfers a possessory interest to tenants. The court rejects the per se physical taking argument because the regulation limits rents rather than authorizing a physical invasion.
Phoenix Technologies holds coal rights beneath developed land. A statute requires the company to leave pillars of coal in place to prevent surface subsidence. Phoenix contends the requirement destroys the economic value of its mineral estate. The court declines to treat the regulation as a per se taking because the company retains substantial value in its remaining holdings.
A regulation that creates a recurring legal entitlement for third parties to enter private property appropriates the owner's right to exclude and constitutes a per se physical taking. The analysis focuses on the government's grant of an access right rather than the duration of each individual entry or the absence of permanent structures. Courts treat such recurring invasions as equivalent to an easement even when the entries are intermittent or time-limited.
Supporting sources
…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. The impact on the landlord's property rights is minimal. The statute provides for compensation. In my view, the New York statute is a valid exercise of the State's police power and does…
…challenged regulation is circular: every delay would become a total ban and both moratoria and normal permit processes would be categorical takings
…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
Yes. The Takings Clause applies to both real and personal property. A government mandate that requires an owner to surrender a fixed portion of personal property such as inventory or manufactured goods for public use effects a per se taking. The owner need not show a substantial decline in overall business value. The compelled transfer itself triggers the compensation requirement.
Supporting sources
No. Courts examine 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. The temporary nature of the moratorium means it is not automatically treated as a per se taking.
Supporting sources
A per se physical taking occurs when the government authorizes a physical invasion or appropriation of property. In contrast, a regulatory taking that merely restricts use without authorizing invasion is evaluated under the multifactor Penn Central test that weighs economic impact, investment-backed expectations, and the character of the government action.
Supporting sources