Also known as: Fifth Amendment takings · 5th Amendment taking · Fifth Amendment Taking Clause · Takings Clause · eminent domain
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional prohibition barring the government from appropriating private property for public use without paying just compensation. The clause protects both real and personal property against physical invasions and certain regulatory restrictions that deny all economically viable use. Compensation is required whenever the government effects a per se physical taking or a regulatory taking under the applicable doctrinal test.
Forrest Falconer owns Blackacre subject to a view easement benefiting Felicia Fuentes's adjacent parcel. The city condemns the burdened estate to build a public highway that will block the view. The taking extinguishes the servitude because the highway use is inconsistent with continued enjoyment of the easement.
Frontier Capital owns an agricultural processing plant. A state regulation grants union organizers recurring weekly entry to the plant's nonpublic areas to solicit workers. The compelled physical invasions appropriate the owner's right to exclude and therefore constitute a per se physical taking requiring compensation.
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Fairview Manufacturing grows specialty produce under a federal marketing order. The order requires the company to deliver a fixed percentage of each harvest to a government warehouse while retaining only a contingent interest in later sales proceeds. The compelled transfer of personal property effects a per se taking that mandates just compensation.
Flora Ford purchases two coastal lots intending to build single-family homes. A new state statute prohibits all permanent habitable structures on the lots, rendering them valueless for their intended use. The regulation denies all economically beneficial use and therefore constitutes a categorical taking under Lucas.
Franklin Foundry owns a historic terminal building it wishes to redevelop with a modern tower. The city designates the structure a landmark, blocking demolition and forcing costly retrofits while still allowing continued rail operations. The restriction leaves economically viable use and therefore does not effect a taking under the Penn Central factors.
Foster Forge owns several parcels in a declining industrial district. The city condemns the land under a comprehensive redevelopment plan and transfers title to private developers expected to create jobs and increase tax revenue. The taking satisfies the public-use requirement because it is rationally related to a legitimate public purpose.
Yes. Even temporary but recurring invasions that appropriate the right to exclude constitute per se physical takings under the Takings Clause.
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Yes. Government appropriation of personal property, such as crops or fixtures, effects a per se taking even when the owner retains only a contingent interest in the seized items.
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A regulation effects a categorical taking when it denies the owner all economically beneficial use of the land. Otherwise courts apply the multi-factor Penn Central balancing test.
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Yes. A taking satisfies the public-use requirement when it is rationally related to a legitimate public purpose such as economic redevelopment that the government reasonably believes will benefit the public.
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…structures (such as the Brooklyn Bridge, City Hall, the Statue of Liberty and the Municipal Asphalt Plant) and thus do not raise Fifth Amendment taking questions. See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977 and Jan. 10, 1978, Supplement). Although the Court refers to the New York…