What Is Considered The “Taking” in an Eminent Domain Case

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When the government needs to acquire the entire or part of a private property, it is known as the “taking”. According to the Fifth Amendment of the United States Constitution, the government may take over the real and personal property for the purpose of public use and the person will just be given compensation. As the owner of the private property, you can consult a professional eminent domain lawyer to guide you in acquiring the right amount of compensation. It is unconstitutional to acquire the property of the citizens for private use.

Contributions of the “Taking”:When the government takes possession of or acquires private land for ‘public use’, the taking is said to have occurred. It could be a small portion or the entire property. Even if the acquisition is of a minimal nature, compensation is to be given under the Takings Clause.

The claims of taking are of two types:

  • Physical taking
  • Regulatory taking
  • The acquisition of private land and infringement by the government for its planned usage is physical taking. In case of a regulatory taking, the government may not infringe or inhabit the private property but it could restrict the private owner from using a portion or full property insofar that a taking transpires. Regulating to an extent is the principle on which regulatory taking is based. If it exceeds the limit then it is deemed as a taking.

There are two types of governmental actions that are broadly considered to apply under the takings clause:

  • Taking of private property under the eminent domain power by the government
  • Taking of private property through inverse condemnation

Eminent domain is the constitutional empowerment of the government. The power of eminent domain enables the government or its designated agencies to acquire privately owned property for public use by paying the owner just compensation.

Under Inverse condemnation, the government regulation condemns a part or whole of the private property from being used by the owner. This erodes the value of the property to the owner in so far that amounts to the condemnation of property by the government.

Inverse condemnation tantamounts to taking over the private property by eminent domain through regulatory powers of the state, albeit a taking by eminent domain is the use of the unequivocal power of the government.

However, any temporary usage and/or the infringement of the private property by the government or its designated agencies curtailing the rights of the property to its owner is not presumed as the taking.

There is a lot of hot discussion on how the government has used its sovereign power of eminent domain to acquire and develop the private property for questionable “public use”. Acquiring private property for the widening of roads or highways is accepted as classic public use. The acquiring of private property for revitalization by private entities has also been done using the power of eminent domain. Consulting an eminent domain lawyer for guidance can help a private property owner to know the options available.

It has to be clearly understood that all the acquisitions of private property cannot be considered as taking.  It could be a case of acquisition by taxation powers or police powers or any such governmental powers. Such acquiring done by the state may not come under the purview of taking. Also when government infringes a private property through powers that are different from taking powers, the condition of just compensation may not apply. A lawyer in eminent domain can determine the nature of acquisition that has been done.      

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