What is a 'Taking'?
Created by FindLaw's team of legal writers and editors | Last reviewed February 21, 2018
Let's assume you have a home in a known flood plain, less than a mile from the river. It hasn't flooded in nearly 50 years and a thriving community has built up around the area. However, the government wants to get prepared for the likelihood of a major flood that could inundate the larger region by building a major levee right where your house is. They cite eminent domain in order to take apart and move your house (along with several others) back by roughly 100 yards so they can build the levee through what is now your property. Since this is deemed necessary to protect the larger region, they really don't need your permission for the action known as a "taking." Although you get to keep your house, you'll be deprived of your property for the duration of the move and some time after.
What is a Taking? The Basics
In an eminent domain action, what is necessary in order for a "taking" to occur is not always a formal transfer of interest in the property. Rather, what is required is a destruction of a personal interest in property, or such a drastic interference with the use and enjoyment of that property so as to constitute a taking. In other words, the impairment is so severe that it is tantamount to the assertion of a servitude on the property for the benefit of the government.
In the original example, the government needs to temporarily deprive you of access to your property while it constructs a levee for the greater good of the broader public, thus drastically interfering with the use and enjoyment of your property to the point where it needs to be formally "taken."
It is often the case that a landowner is not completely deprived of his property, but instead suffers a restriction or impairment of his or her right to use it. For example (and as is frequently the case), a government may need to run a utility through private property, or need to alter a shoreline such that the property is no longer on the waterfront. The property may need to be flooded to create a dam, or a building on the property may need to be relocated to make access to another point. In any event, the government would need to prove the necessity of the action. In such cases, a partial taking may be effected, and the landowner is entitled to proportional compensation.
"Constructive" Taking or Reverse Condemnation
Still another form of taking may occur when there is no actual property being taken from a person. Instead, governmental activity on one property may so severely deplete the value of adjacent or neighboring property so as to constitute a "constructive taking," often referred to as inverse or reverse condemnation. Fumes, noises, vibrations, changes in flow of ground water, or toxic pollutants are some of the more common interferences that may constitute constructive takings. Examples include properties affected by airport noise and fumes, waterfront properties affected by rerouted water, or livestock farms affected by nearby noise or ground vibration. In each of these circumstances, property owners may be entitled to compensation from the governmental entity.
Finally, a taking need not be permanent; it may be effected and justified only under limiting circumstances. For example, in time of war or insurrection, a government may need to exercise control and dominion over lands otherwise not needed for public welfare or safety. Again, a landowner may be compensated for the temporary impairment or deprivation in his or her use of private property.
Are You Subject to a Taking? Get a Free Legal Evaluation Today
Being asked to leave your home for a certain period of time -- or for good -- can cause a lot of stress. But as long as the government has proven the action to be necessary and provides just compensation, you may not have much recourse. However, you can still challenge eminent domain actions. Protect your rights today with a free legal evaluation of your eminent domain concerns.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.