Also known as: physical taking
Written by attorneys · grounded in primary & secondary sources — see below
A category of government action under the Takings Clause that occurs when the government authorizes a physical invasion or occupation of private property. Such actions appropriate the owner's right to exclude others even when the invasion is temporary or intermittent. The appropriation requires just compensation regardless of the duration of each entry or the absence of permanent structures.
Philip Powell owns a commercial greenhouse operation. A state labor rule grants union representatives the right to enter the nonpublic growing areas three days each week during harvest season for up to two hours per visit. Powell cannot bar the representatives during those scheduled times. The recurring entries appropriate his right to exclude and trigger the requirement of just compensation.
Patrick Phan owns a church camp along a creek. After a flood, the county enacts an ordinance that prevents any rebuilding or use of the land for more than two years while officials study flood-control options. The county's action does not authorize physical entry or occupation by third parties. The moratorium therefore does not constitute a physical taking.
Select any source to read its text and confirm it supports the definition.
Patricia Patel holds undeveloped parcels around a lake. A regional planning agency imposes successive moratoria that bar all construction for thirty-two months while new environmental rules are drafted. The restrictions do not authorize any physical entry or occupation by third parties. The moratoria therefore do not constitute physical takings.
Pierre Poulin purchases beachfront lots for residential construction. A new state coastal council rule prohibits any building on the lots because of erosion concerns. The regulation leaves the land economically idle and prevents any productive use. The total deprivation of economic use constitutes a regulatory taking, not a physical taking.
Priscilla Parks owns an apartment building subject to a rent-control statute that caps rents far below market levels. The statute does not authorize any physical entry by tenants or the government. The economic impact alone does not convert the regulation into a physical taking.
Phuong Pham owns coal estates subject to a statute that requires support pillars to remain in place to prevent surface subsidence. The regulation limits how much coal can be extracted but does not authorize any physical invasion of the surface or subsurface by third parties. The restriction therefore does not amount to a physical taking.
A physical taking occurs when the government authorizes a physical invasion or occupation of private property that appropriates the owner's right to exclude. A regulatory taking occurs when a restriction on use diminishes value without any physical entry. The character of the government action determines which category applies.
Supporting sources
No. Even temporary but recurring invasions that appropriate a right to enter private property require just compensation. The duration of each individual entry does not remove the action from per se physical taking treatment when the access is scheduled and ongoing.
Supporting sources
No. When the government appropriates the right to exclude through recurring physical access, the taking is per se and does not require proof of substantial economic impact or loss of market value. The appropriation of the exclusion right itself supplies the constitutional violation.
Supporting sources
…Constitutions. Ibid . [^maj-23]: James Madison, author of the Takings Clause, apparently intended it to apply only to direct, physical takings of property by the Federal Government. See Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 711 (1985). Professor…