Saturday, May 26, 2012

Eminent Domain (Taking vs. Regulations)

The following question was asked by a reader of the blog:

"Whats the difference between taking v. eminent domain."


I don't think it's best to think of these two concepts as different, necessarily, as a taking falls within the larger category of Eminent Domain. The Fifth Amendment (applicable to the states via the Fourteenth Amendment) provides that private property may not be taken for public use without just compensation.

When approaching a question implicating the government (either state or federal) taking private property for public use (ie, utilizing its power of Eminent Domain), the crucial issue is whether the government action is a taking (which, as per the amendments above, requires the government to pay just compensation), or merely a regulation (which does not require the government to pay compensation).

On the MBE, you should note that actual or physical appropriation of property will nearly always amount to a taking. In addition, if a government regulation permenently denies a landowner all economic use of his land, the regulation will amount to a taking, unless the question provides that the act being regulated is a prohibited nuisance.

It's a bit more difficult if a landowner is merely temporarily denied use of his property. In such a situation, relevant circumstances must be weighed to determine if there has been a taking. Some of these considerations include the length of time the owner is denied use of his land, the effect that the delay has on the value of the property, and the reasonable expectations of the owner of the land. All considerations are meant to determine whether fairness and justice require providing just compensation to the owner of the land.

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