Legal Definitions - temporary taking

A temporary taking occurs when a government action significantly interferes with a private property owner's ability to use or enjoy their land for a limited period, to such an extent that it is considered a "taking" of their property rights under the Fifth Amendment of the U.S. Constitution. Even though the interference is not permanent, the property owner may be entitled to "just compensation" for the time they were deprived of their property's use or value.

Here are some examples illustrating a temporary taking:

• Emergency Requisition: After a severe flood devastates a town, the local government declares a state of emergency and temporarily requisitions a privately owned warehouse for six months to store relief supplies and house displaced residents. During this period, the warehouse owner is unable to use their property for their usual commercial storage business.

  Explanation: The government's action, while necessary for public safety, prevents the owner from operating their business and deriving income from their property for a defined period. This significant, albeit temporary, deprivation of use constitutes a temporary taking, for which the warehouse owner would likely be owed compensation.

• Construction Easement: A state transportation department is building a new highway. To facilitate the construction, the department obtains a temporary easement over a portion of an adjacent private farm for two years, using it as a staging area for heavy equipment and construction materials. This prevents the farmer from planting crops on that specific section of their land during the construction period.

  Explanation: By temporarily occupying and using a significant part of the private farm, the government has deprived the farmer of their full use and economic benefit of that land for a specific duration. This temporary interference with property rights, even if not a permanent acquisition, qualifies as a temporary taking requiring compensation for the lost agricultural use.

• Temporary Development Moratorium: A city council implements a temporary moratorium on all new commercial development in a specific downtown district for 18 months while it finalizes a new comprehensive zoning plan. A property owner who had secured permits and was ready to begin construction on a new office building within that district is now unable to proceed with their project for the duration of the moratorium.

  Explanation: The government's temporary regulation, by imposing a complete halt on development, significantly restricts the property owner's ability to use their land as intended and derive economic benefit from it for a defined period. This substantial, though not permanent, deprivation of development rights can be considered a temporary taking, entitling the developer to compensation for the lost opportunity and delay.