Also known as: per se taking rule · per se takings · per se taking · per se takings doctrine · categorical takings rule
Written by attorneys · grounded in primary & secondary sources — see below
A categorical rule under the Takings Clause that certain government actions constitute takings requiring just compensation without case-specific balancing. The rule applies to permanent physical occupations of property and to regulations that deprive an owner of all economically beneficial use of land. Exceptions exist only when the prohibited use was already barred by background principles of nuisance or property law at the time of acquisition.
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Paula Pierce buys coastal acreage intending to build homes. A new state rule bars all construction because the land lies in a protected dune zone. Paula shows that the regulation leaves the parcel with no economically viable use. The court applies the per se rule and orders compensation because the restriction wipes out all productive value.
Premier Manufacturing owns shoreline lots slated for a resort. The regional planning agency imposes a two-year moratorium on all building permits while it studies environmental impacts. Premier claims a total taking during the moratorium period. The court rejects automatic per se treatment and weighs the moratorium's duration, planning purpose, and effect on value before deciding compensation is not required.
Priscilla Parks owns an apartment building. A city ordinance forces her to allow a cable company to install small boxes and wiring on the roof and exterior walls. The equipment occupies only a few square feet. The court holds the mandated installation is a per se physical taking regardless of its minimal size or economic impact.
Peak Performance owns subsurface coal rights beneath developed land. A statute requires the company to leave 50 percent of the coal in place to prevent surface subsidence. Peak Performance argues the rule destroys the economic value of its mineral estate. The court declines to apply the per se rule because the regulation prevents a public nuisance rather than effecting a total taking.
Pioneer Energy grows raisins and must deliver a percentage of each crop to a government committee under a marketing order. The committee takes title to the raisins and disposes of them as it chooses. Pioneer Energy retains only a contingent interest in possible future proceeds. The court treats the forced transfer as a per se physical taking of personal property.
Pablo Perez owns a mobile home park. A city ordinance caps rents and restricts the owner's ability to change the use of the land. Pablo Perez claims the rules effect a physical taking by granting tenants a perpetual right to occupy the spaces. The court holds that the rent control measures regulate use rather than authorize a permanent physical occupation and therefore fall outside the per se rule.
A regulation triggers the per se rule when it deprives the owner of all economically beneficial or productive use of the land. Compensation is required unless the prohibited use was already barred by background nuisance or property principles at the time of acquisition. Courts treat such total wipeouts like physical appropriations.
Supporting sources
No. A temporary moratorium that denies all economic use for a limited period is not automatically a per se taking. Courts instead 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.
…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…
…conclusion that they could not make out a claim under Penn Central's factors. Held: The moratoria ordered by TRPA are not per se takings
…that the Escondido ordinance authorizes a permanent physical occupation of the landlord’s property and therefore constitutes a
…is relevant only to just compensation, not to the question whether a taking occurred. The Court of Appeals and dissent confuse
…§§ 4, 5, or 6 of the Subsidence Act, and various regulations: "1. Violate the Rule
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A government-authorized permanent physical occupation of private property, however small, constitutes a per se taking. The rule applies even when the occupation has little economic impact or does not significantly interfere with investment-backed expectations.
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The rule applies to personal property when the government physically appropriates a discrete portion of an owner's goods for public use. A forced transfer of title or possession, even with only a contingent interest retained by the owner, triggers the duty to pay just compensation.
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Yes. A regulation that grants third parties a recurring legal right to enter private property appropriates the owner's right to exclude and constitutes a per se physical taking. The intermittent nature of each entry does not remove the action from per se treatment.
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