Also known as: physical takings · physical appropriation
Written by attorneys · grounded in primary & secondary sources — see below
A government action that physically appropriates or occupies private property. The action effects a per se taking when the government or a third party authorized by the government enters or takes possession of land or chattels, even if the invasion is temporary or intermittent.
Paul Peterson owns a large farm. A state regulation requires him to admit union organizers onto his fields for three hours twice a week during harvest. The organizers enter on schedule and use the property for their own purposes. The recurring physical invasions appropriate Peterson's right to exclude and constitute a physical taking.
Paige Porter owns riverside land. County officials build a dam that causes recurring seasonal flooding across her fields. The water covers the ground for weeks each year and prevents normal use. The repeated physical occupation amounts to a physical taking even though the water eventually recedes.
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Pearl Porter owns beachfront lots. State coastal rules prohibit any construction on the parcels. The rules leave the land without any economically viable use. The total deprivation of productive use does not qualify as a physical taking. It is instead analyzed as a regulatory taking under the Lucas per se rule for complete loss of value.
Pierre Poulin owns several undeveloped parcels. A regional planning agency imposes successive moratoria that block all construction for several years. The temporary but extended prohibition on use does not qualify as a physical taking because no physical invasion or permanent appropriation occurs.
Pilar Pena owns a mobile home park. City rules cap rents and restrict her ability to change tenants. The regulations do not require her to submit to any physical occupation by third parties. The restrictions therefore remain regulatory measures rather than a physical taking.
Penelope Price owns a chain of service stations. Federal rules cap the price she may charge for fuel. The limits affect only the economic return from her property. They do not involve any physical appropriation and therefore do not constitute a physical taking.
No. Even temporary or intermittent physical invasions that appropriate a right to enter private property qualify as per se physical takings requiring just compensation.
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Yes. The Clause applies to both real and personal property, so government appropriation of chattels such as crops or inventory effects a physical taking.
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A regulation becomes a physical taking when it grants third parties a recurring legal right to enter and occupy private property, thereby appropriating the owner's right to exclude.
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…Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San Diego , 450 U. S., at 652 (dissenting opinion). "[F]or what is the land but the profits thereof[?]" 1 E. Coke, Institutes, ch. 1, § 1 (1st Am.…