Takings in Property Law

The central principle of the Takings Clause (from the Fifth Amendment) is to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

To establish a “taking” a plaintiff must show three separate elements:

1. A taking by the state;

2. For public use (interpreted as a legitimate public purpose);

3. Without just compensation

In defending an alleged “taking,” the state must show its justification in some aspect of their police power, asserted for the general welfare.

If a taking is found, a court will order the state to provide just compensation to the owner. The Supreme Court has determined that “fair market value” constitutes just compensation. Fair market value is defined as “the amount a willing buyer would pay in cash to a willing seller.”

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