What Is a Taking?

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.

The government wants to prepare for the possibility of a major flood that could inundate the larger region. The government wants to protect the region by building a major levee right where your house is. Here, government action begins with its power of eminent domain.

A government agency can use eminent domain to take apart and move your house. They want to move it back by roughly 100 yards so they can build the levee. Since the government taking is deemed necessary to protect the larger region, it doesn’t need your permission. 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 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
• Such a drastic interference with the use and enjoyment of that property to constitute a taking

In other words, the impairment is so severe that the property serves only the benefit of the government.

In the original example, the government needs to temporarily deprive you of access to your property. The taking occurs while it constructs a levee for the greater good of the broader public. This is drastically interfering with the use and enjoyment of your property to the point where it needs to be formally taken.

Partial Takings

It is often the case that a landowner is not completely deprived of their property. Instead, they suffer a restriction or impairment of their right to use it. Reasons a government may need to include:

• Running a public utility through private property using a public easement (right of way)
• Alter a shoreline or roadway such that private property is no longer on the waterfront

A public project has to have a legitimate public purpose, such as flooding an area to create a dam or giving 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 for the loss of value of the property.

Constructive Taking or Reverse Condemnation

Another form of taking may occur when there is no actual property being taken from a person. Instead, governmental activity on one property may severely deplete the fair market value of adjacent or neighboring property.

This would be a constructive taking, often referred to as reverse or inverse condemnation. It may also be referred to as a regulatory taking.

Some of the more common interferences that may give rise to inverse condemnation cases are:

• Fumes
• Noises
• Vibrations
• Changes in flow of groundwater
• Toxic pollutants

Specific examples of inverse condemnation claims include:

• Properties affected by airport noise and fumes
• Waterfront properties affected by rerouted water
• Livestock farms affected by nearby noise or ground vibration

In each of these circumstances, an inverse condemnation action can have consequences. Property owners may be entitled to compensation from the responsible government entity.

Temporary Takings

A taking doesn’t need to 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 use or safety. Landowners may be compensated for the temporary impairment of private property rights.

Are You Subject to a Taking? Get a Free Legal Evaluation Today

The Constitution’s takings clause states that private property shall not be taken for public use, without just compensation. American appellate courts, alongside the Supreme Court, recognize this Fifth Amendment protection.

Whether you live in California or a smaller state, you have protections against government regulation that amounts to a physical taking or an impairment of your land use.

If you’re the victim of the government’s taking of property, you may need to pursue legal action through an eminent domain attorney. Being asked to leave your home for a certain period, or even for good, can cause a lot of stress. As long as the government has proven the action to be necessary and provides just compensation, you may not have much recourse.

You can still challenge eminent domain actions and make sure you’re being justly compensated. Protect your rights by consulting with a real estate law attorney.