Also known as: per se compensable takings · per se taking
Written by attorneys · grounded in primary & secondary sources — see below
A category of government action that the Takings Clause treats as automatically requiring just compensation because it is functionally equivalent to a physical appropriation of property. The rule applies to permanent physical occupations of any size and to regulations that deprive an owner of all economically beneficial use of land unless background principles of nuisance or property law already prohibited the use at the time of acquisition. Temporary restrictions and partial diminutions in value fall outside the per se category and instead trigger the multi-factor regulatory takings inquiry.
Select any source to read its text and confirm it supports the definition.
Priya Prasad purchased coastal acreage intending to build a single-family residence. A new state regulation prohibited all construction on the parcel to protect dunes. Because the rule left the land with no economically beneficial use, the restriction operated as a per se compensable taking. Priya recovered the fair market value of the property.
Pearl Porter owned several vacant lots near a protected lake. The regional planning agency imposed successive building moratoria lasting thirty-two months while it completed a comprehensive plan. The court examined the duration, the agency's good-faith planning purpose, and the effect on value rather than treating the delay as a per se compensable taking. Pearl's claim therefore failed.
Patricia Patel owned a multi-unit apartment building. A city ordinance required landlords to permit installation of cable television equipment on rooftops and inside units while limiting compensation to a nominal fee. The mandated physical occupation of even a small portion of the property constituted a per se compensable taking. Patricia obtained just compensation for the easement-like intrusion.
Paige Porter owned a mobile-home park. The city capped rents and restricted the owner's ability to raise rates or evict tenants. Because the ordinance regulated the terms of existing leases rather than authorizing a physical invasion by third parties, it did not qualify as a per se compensable taking. Paige's constitutional claim was dismissed.
Perry Pratt operated a large feedlot. County supervisors granted neighboring farms statutory immunity from nuisance suits arising from the operation. The immunity effectively transferred to the neighbors an easement to deposit odors and waste on Pratt's land. The Iowa Supreme Court held that the statutory grant constituted a per se compensable taking.
Paul Peterson grew raisins and also acted as a handler. A federal marketing order required him to surrender a percentage of each crop to a government committee that took title and disposed of the raisins. The compelled physical appropriation of personal property effected a per se compensable taking even though Peterson retained a contingent interest in possible net proceeds. He recovered just compensation for the seized raisins.
A regulation qualifies when it deprives the owner of all economically beneficial or productive use of land and the prohibited use was not already barred by background principles of nuisance or property law at the time of acquisition. Total wipeouts are treated like physical appropriations and require just compensation without further balancing.
No. Courts examine the duration of the restriction, the government's planning purposes, the owner's reasonable expectations, and the effect on property value to decide whether fairness requires compensation. The temporary nature prevents automatic per se treatment.
…installation of a cable on a rooftop is not the type of physical invasion that this Court has previously held to constitute a per se taking. The impact on the landlord's property rights is minimal. The statute provides for compensation. In my view, the New York statute is a valid exercise of the State's police power and does…
…is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking
…that the Escondido ordinance authorizes a permanent physical occupation of the landlord’s property and therefore constitutes a
…for consideration on the merits. On remand, the Ninth Circuit viewed the reserve requirement as a use restriction rather than a per se taking
…federal control over former President Nixon’s papers in the wake of the Watergate scandal, was determined to have effected a per se taking
Any permanent physical occupation authorized by the government, however minimal, appropriates the owner's right to exclude and is therefore equivalent to a classic taking. Compensation is required regardless of the size of the occupied space or the public purpose served.
When the government compels an owner to surrender title and possession of discrete items of personal property, the action constitutes a per se taking. Retention of only a contingent interest in future proceeds does not avoid the compensation requirement.