Also known as: possessory taking · possessory taken · physical taking
Written by attorneys · grounded in primary & secondary sources — see below
A category of government actions under the Takings Clause that effect a per se physical taking by authorizing third parties to enter or appropriate private property on a recurring basis. Such actions appropriate the owner's right to exclude regardless of whether the invasion is temporary, intermittent, or leaves title with the owner. Compensation is required even when the access serves labor or regulatory goals and produces no measurable decline in market value.
Priscilla Parks owns nonpublic greenhouses where seasonal crews harvest fruit. A state rule lets union organizers enter the orchards three afternoons each week during harvest to meet workers. Parks cannot bar the organizers during those windows. The recurring entries appropriate her right to exclude and therefore constitute a possessory taking.
Pavel Petrov grows almonds under a federal marketing order. The order requires him to deliver a fixed share of each harvest to a government warehouse and bars him from selling that share. Petrov keeps only a contingent claim to later export proceeds. The physical transfer of the almonds is a possessory taking of personal property.
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Pedro Pacheco runs an assembly plant. State law lets nonprofit organizers enter the production floor every Wednesday for forty-five minutes to discuss unionization. Pacheco cannot revoke the access and must designate a roped-off area. The scheduled, ongoing invasions appropriate his exclusion right and amount to a possessory taking.
Pierre Poulin owns a clean-room laboratory. An agency rule authorizes independent pharmacists to enter the rooms twice each week to speak with line workers. Poulin must allow the visits and cannot limit their frequency. The recurring physical access effects a possessory taking.
Parker Phillips manufactures drones under government contracts. A federal program requires him to deliver fifteen percent of each completed batch to a depot within forty-eight hours. Phillips retains only a contingent interest in later sales proceeds. The compelled transfer of title and possession is a possessory taking of personal property.
Phuong Pham operates a private art gallery. A city workforce rule grants union representatives scheduled entry several times a month to nonpublic workshops and storage rooms. Pham cannot refuse the visits. The repeated invasions appropriate her right to exclude and constitute a possessory taking.
No. Recurring but temporary invasions that appropriate the right to exclude are treated as per se physical takings. The key is the government's creation of an ongoing legal entitlement for third parties to enter, not the duration of each visit.
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No. When the government authorizes recurring physical access or compels delivery of personal property, the appropriation of the exclusion right or possession constitutes a taking even if legal title remains with the owner.
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No. The per se rule for physical invasions focuses on the appropriation of the right to exclude rather than on market-value impact or investment-backed expectations.
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Yes. When a regulation creates a recurring right of entry for union representatives on private property, the access appropriates the owner's exclusion right and triggers the per se physical taking rule.
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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…