Takings and Eminent Domain: every key term you need (+ practice quiz)
25 flashcard terms for Property Topic 8, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The closing command of the Fifth Amendment that private property shall not be taken for public use without just compensation, read as a limit on the sovereign's inherent condemnation power rather than a grant of it.
Incorporation of the Takings Clause
The doctrine that the just compensation requirement applies to state and local governments through the Fourteenth Amendment's Due Process Clause, so city zoning boards and state agencies are bound just as federal actors are.
Eminent Domain
The inherent sovereign power to force a transfer of private property to public ownership or control, exercisable without the owner's consent so long as the taking serves a public use and compensation is paid.
Condemnation Proceeding
The formal judicial or administrative action the government files to exercise eminent domain, typically resolving two questions: whether the taking is authorized and for a public use, and what amount of compensation the owner is owed.
Inverse Condemnation
A suit brought by the owner rather than the government, alleging that regulation or physical intrusion has effectively taken property without any formal condemnation, and seeking compensation as though eminent domain had been exercised.
Public Use Requirement
The constitutional condition that a taking serve the public, now interpreted with heavy deference so that a taking survives if it is rationally related to a conceivable public purpose, not only if the public physically uses the land.
Berman v. Parker
Decision upholding condemnation of non-blighted property inside a comprehensive slum clearance plan, treating legislative judgments about community welfare and aesthetics as nearly conclusive on the public use question.
Hawaii Housing Authority v. Midkiff
Decision upholding a statute forcing transfer of fee titles from a small group of landowners to their lessees, holding that breaking up a land oligopoly was a legitimate public purpose even though the transferees were private parties.
Kelo v. City of New London
Decision permitting condemnation of unblighted homes for an integrated private redevelopment plan expected to bring jobs and tax revenue, holding economic development qualifies as a public use under deferential review.
Kelo Legislative Backlash
The wave of state statutes and constitutional amendments passed after Kelo that bar or restrict condemnations for economic development, showing that states may protect owners more generously than the federal floor requires.
Just Compensation
The constitutional measure of what the owner is owed, ordinarily the fair market value of the property taken, calculated to make the owner whole in economic terms rather than to capture the government's gain.
Fair Market Value
The price a willing buyer would pay a willing seller, neither being compelled to act, measured at the highest and best use of the land; subjective attachment, relocation costs, and lost goodwill are generally excluded.
Per Se Physical Occupation Rule
The categorical rule that a permanent physical occupation authorized by government is a taking regardless of how small the intrusion is or how weighty the public interest behind it.
Loretto v. Teleprompter Manhattan CATV
Decision holding that a statute requiring a landlord to allow a small cable installation on her building was a taking, because permanent physical occupation destroys the rights to possess, use, and exclude others.
Arkansas Game and Fish Commission v. United States
Decision holding that recurrent government-induced flooding is not automatically exempt from takings liability merely because it is temporary; such invasions are judged by factors like duration, foreseeability, and severity of interference.
Regulatory Taking
A taking found where no title changes hands and no physical entry occurs, but a restriction on use burdens the owner so severely that fairness and justice require the public to pay rather than the owner to absorb the loss.
Pennsylvania Coal Co. v. Mahon
The origin of regulatory takings, announcing that while property may be regulated to some extent, a regulation that goes too far will be recognized as a taking requiring compensation.
Penn Central Balancing Test
The default ad hoc inquiry for regulatory takings, weighing the economic impact on the claimant, the extent of interference with distinct investment-backed expectations, and the character of the government action.
Distinct Investment-Backed Expectations
The Penn Central factor asking whether the owner made concrete, reasonable, and objectively justified plans for the property that the challenged regulation defeats, as opposed to hoping for a speculative future use.
Character of the Government Action
The Penn Central factor distinguishing a physical invasion, which weighs heavily toward a taking, from a general public program that adjusts economic burdens and benefits to promote the common good.
Lucas Total Wipeout Rule
The categorical rule that a regulation depriving land of all economically beneficial use is a taking per se, without any balancing, subject only to the background principles limitation.
Background Principles Exception
The defense that no compensation is owed for a total wipeout if the prohibited use was never part of the owner's title to begin with, because state nuisance and property law already forbade it.
Denominator Problem
The question of how to define the relevant parcel against which lost value is measured; slicing the property into a burdened fragment, called conceptual severance, makes a total wipeout far easier to show.
Palazzolo v. Rhode Island
Decision holding that acquiring title after a restriction is enacted does not automatically bar a takings claim, since a transfer of ownership should not extinguish the right to challenge an unreasonable regulation.
Knick v. Township of Scott
Decision holding that an owner may sue in federal court under the civil rights statute as soon as the taking occurs, eliminating the requirement of first pursuing compensation in state proceedings.