Takings

What is a "taking" and how can it affect me?

According to what is referred to as the takings clause in the constitution, property may not be taken for public use without just compensation (U.S. Const. Amend. V). A taking is when a government agency materially lessens the value or destroys private property in a considerable manner or by substantially interfering with the property rights of the owner to enjoy or use their property (State of Utah Office of the Property Rights Ombudsman, Takings. n.d.). Takings can take many different forms. Eminent Domain is the most obvious example, but other less obvious forms are Regulatory Takings, Development Exactions, damaging, and physical occupation. Each type of taking has different requirements in order for it to be first considered a taking and second to be considered a legal or illegal taking. Even though each form of taking is different, every single taking requires something in exchange, or “just compensation”.

In the United States, we have protections against the government taking property away from private individuals unfairly. It is important to our property rights and therefore to all of our other rights, to be able to retain our right of security, or in other words to prevent people from taking what belongs to us. The most important tool in regards to takings is to be informed on what a taking is, how to recognize them, and what rights one has in regards to a taking situation. What forms of property may be taken? Physical land may be taken as well as other forms of property interest (State of Utah Office of the Property Rights Ombudsman, Takings. n.d.). There are six elements of an illegal taking:

1. A form of action.

2. To damage, occupy, or interfere with.

3. Privately owned property.

4. By a public or government entity.

5. For a public interest or use.

6. Without providing entitled just compensation to the owner.

Anyone who owns property is subject to takings. If you believe a government entity is taking property from you unfairly or without just compensation, you should educate yourself on the process and standards of taking property, weigh the situation and consequences, then contact a land-use attorney if you wish to challenge the taking. Some states, like Utah, have a property rights ombudsman, who offers legal information and even advisory opinions on specific property rights issues.

In regards to takings, the property rights ombudsman (2018, pg 1-2) has described what rights you have as a property owner, those rights are as follows:

1. It is your right to ask questions regarding takings and how they impact you.

2. It is your right to seek help and consult with the property rights ombudsman, without penalty from the taking entity.

3. It is your right to hire an attorney to represent you.

4. It is your right to be informed of what public interest your property will be used for and to challenge the validity of the use and taking.

5. It is your right to know exactly what property is being taken and to have access to public documents related to your property.

6. It is your right to just compensation when property is being taken from you.

7. It is your right to know how just compensation was determined and you are entitled to a copy of the appraisal.

8. It is your right to escort the appraiser of your property and to speak with them.

9. It is your right to negotiate the amount of compensation you receive and to provide evidence to support your negotiations.

10. It is your right to resolve takings issues out of court and with the mediation of the property rights ombudsman, even if the taking entity objects.

11. It is your right as a part of the mediation process with the property rights ombudsman to request an additional appraisal at the taking entity’s expense.

12. It is your right to require that any verbal communication or promises made by the taking entity be provided to you in writing and signed by a representative of the entity.

13. It is your right to due process if your taking issue is brought to court, and you continue to have the right to negotiate even after litigation starts.

As you can see, we have many rights when it comes to property rights and takings issues, the primary factor in the case of takings issues is to be informed of your rights so that you can defend yourself and avoid being taken advantage of.

Notes:

1. This article is part of a greater analysis, that analysis can be found in it's entirety here.

2. Disclaimer: The author of this article is NOT an attorney. The information provided in this document is provided for educational purposes only and is NOT considered legal advice.

References

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Cornish Town v. Koller, 817 P.2d 305 (Utah 1991). https://utahpropertyrights.files.wordpress.com/2014/02/cornish.pdf

Dolan v. City of Tigard, 512 U.S. 374 (1994). https://utahpropertyrights.files.wordpress.com/2012/12/dolannew13.pdf

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). https://utahpropertyrights.files.wordpress.com/2012/12/first-englishnew13.pdf

Johnson, D. R. J. (2007). Reflections on the Bundle of Rights. Vermont Law Review. https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/johnson2.pdf

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U.S. Const. amend. V. https://www.archives.gov/founding-docs/bill-of-rights-transcript

U.S. Const. amend. XIV. § 1. https://www.archives.gov/founding-docs/amendments-11-27

Utah Judicial Code, Eminent Domain § 78B-6-501 (2020). https://le.utah.gov/xcode/Title78B/Chapter6/C78B-6-S501_2020051220200512.pdf