Takings and Eminent Domain: The Fifth Amendment Takings Clause

The Takings Clause

… nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V

The clause applies to the states through the Fourteenth Amendment. Eminent domain is the power to take property; just compensation is usually the fair market value of what is taken.

Public use

In Kelo v. City of New London, 545 U.S. 469, 484 (2005), the Court upheld a city’s taking of homes for an economic development plan: “Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.” After Kelo, many states passed laws limiting takings for economic development.

Regulatory takings

A regulation can be a taking if it goes too far. In Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), the Court listed relevant factors: “The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations,” and “the character of the governmental action.” It held that New York’s landmark law, applied to Grand Central Terminal, was not a taking.

Researching eminent domain in your state

To research eminent domain for a real matter, start with the primary sources. For example, read the statute, the rule and the documents in your own file. Then look for recent appellate decisions from your state, because they control how local courts read the law. After that, compare what you found with the federal rules that may also apply. Our state procedures guide and the Research Center can help you find and check each source.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• static.case.law
• static.case.law

Related reading on Lawtopolis:

• Real Property and Personal Property
• Estates in Land and Co-Ownership: Fee Simple, Life Estates, Joint Tenancy