Also known as: per se taking rule · per se takings · per se taking · categorical takings
Written by attorneys · grounded in primary & secondary sources — see below
A set of categorical rules under the Takings Clause that automatically classify certain government actions as takings requiring just compensation. These rules apply to permanent physical occupations of property, total deprivations of all economically beneficial use, and recurring physical invasions that appropriate the right to exclude. Compensation follows without the need for case-by-case balancing of economic impact or investment expectations.
Pablo Perez owns a coastal parcel zoned solely for residential construction. A new state coastal-protection statute bars all building and any other productive activity on the land. Pablo sues, claiming the statute leaves the parcel without any economically beneficial use. The court applies the per se rule and orders just compensation because the regulation wipes out all productive value.
Priya Prasad holds title to several undeveloped lots inside a regional planning district. The planning agency imposes a two-year moratorium on all building permits while it studies environmental impacts. Priya sues, alleging a per se taking. The court examines the moratorium's duration, planning purpose, and effect on value and concludes that fairness does not require compensation under the per se framework.
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Pioneer Energy owns an apartment building. A city ordinance requires the owner to permit a cable company to install and maintain equipment on the roof. Pioneer sues, claiming the mandated installation effects a taking. The court holds that any government-authorized permanent physical occupation, however small, constitutes a per se taking requiring just compensation.
Per se rules apply to permanent physical occupations, total deprivations of all economically beneficial use, and recurring physical invasions that appropriate the owner's right to exclude. These actions receive automatic treatment as takings without further balancing.
No. Courts must examine the duration of the restriction, the government's planning purposes, the owner's expectations, and effects on value to decide whether compensation is required. Temporary restrictions do not automatically trigger the per se rule.
Per se physical takings occur when the government appropriates a right of physical entry or occupation. Regulatory takings require case-by-case analysis of economic impact and expectations unless the regulation eliminates all economically beneficial use.
No. Any permanent physical occupation, however small, and any recurring right of access, however intermittent, triggers the per se rule. The key is the appropriation of the right to exclude, not the extent of the intrusion.
…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…