The Three Forms of Takings for Eminent Domain

The National Law Review had a brilliant article on the forms of takings in eminent domain.  (September 23, 2021, Vol. XI, Number 266)

The simplest to describe and the most common is a physical taking.   Physical takings are the straight forward process of a government or other entity with the power of eminent domain.

The second type is a regulatory taking.  This means the economic input factor comparing value that has been taken and the value which remains post-regulatory taking.  Regulatory takings are commonly called inverse condemnation.

The third is a pro tanto taking.  A pro tanto taking, or a substantial interference taking, relates to a fundamental property interest tied up in the “bundle of sticks” of property rights a landowner once held, which are being taken away.  In simple terms, pro tanto takings involve a court’s assessment of how a public project has interfered with the economic success or accessibility aims of a nearby property or business.  An example would be a road construction project which left the property with no access and facing a 30-foot retaining wall.



Posted in Physical Taking, Pro Tanto Taking, Regulatory Taking
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