Also known as: physical invasions or occupations · physical taking · actual occupation
Written by attorneys · grounded in primary & secondary sources — see below
A government-authorized physical entry onto or occupation of private property that appropriates the owner's right to exclude and requires just compensation under the Takings Clause.
Piper Patel owns a 200-acre commercial greenhouse in New Hampshire. State labor rules allow union representatives to enter non-public growing areas for three hours each week during the twelve-week harvest season. The representatives have entered every week for eight weeks, occupying designated break zones while workers remain at their stations. Piper incurs monitoring costs and experiences reduced productivity from the repeated entries.
Preston Pratt operates a coal company whose mining causes surface subsidence on land owned by others. A state statute requires Pratt to leave sufficient coal in place to prevent subsidence damage to surface structures. The regulation limits how much coal Pratt can extract but does not authorize any third party to enter or occupy the underground seams.
Select any source to read its text and confirm it supports the definition.
Portia Price owns a mobile home park subject to a city rent control ordinance. The ordinance caps rents and restricts evictions, allowing current tenants and their successors to remain in possession indefinitely. No government official or third party physically enters the pads or structures without Price's consent.
Paula Pierce purchased two beachfront lots intending to build single-family homes. A state coastal council later bars all construction on the lots to protect the beach. No government agent or member of the public enters or occupies the lots. The restriction simply prohibits development.
Pierre Poulin owns several gasoline stations subject to a state rent control statute that caps the rent Chevron may charge dealers. Poulin challenges the statute on the ground that it fails to advance a legitimate state interest. The law does not authorize any physical entry onto the stations by the state or third parties.
Paige Porter works as a bus driver for the New York City Transit Authority. The authority adopts a policy barring employees who use methadone from operating vehicles. The policy affects employment qualifications but does not involve any physical invasion or occupation of Porter's personal property or real estate.
Yes. A regulation that authorizes intermittent yet recurring physical entry onto private property appropriates the owner's right to exclude and effects a per se physical taking requiring just compensation.
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Physical invasion or occupation occurs when the government or its agents directly enter or occupy property and appropriate the right to exclude. Regulatory takings involve restrictions on use that do not involve physical entry and are analyzed under multi-factor balancing tests.
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No. Even temporary invasions that recur on a regular schedule appropriate an easement-like interest and qualify as per se physical takings.
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No. The per se physical taking rule applies to recurring invasions regardless of whether they are permanent or continuous, so long as they appropriate the right to exclude on a predictable basis.
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…that a permanent physical occupation, no matter how slight, effects a taking is wholly consistent with this principle. A physical taking entails a certain amount of "singling out." Consistent with this principle, physical occupations by third parties are more likely to effect takings than other physical occupations. Thus, a…