Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them.
This Article offers an innovative mechanism that remediates the shortcomings of extant partial takings doctrines. It proposes that the government give owners whose property is partially taken the power to force the government to purchase the remainder of the lot at fair market value. Exercise of this power by the private owner would lead to the reunification of the land in its pretaking form while transferring title to the entire parcel to a new single owner—namely the government.
Implementation of our proposal would yield important benefits, including allowing for the preservation of current parcel configuration, lowering the cost of the adjudication process as a whole, and reducing the ability of the government to behave strategically. Additionally, our proposal would create opportunities for more efficient planning and land use by the government as the government would be free to reparcel, develop, and resell the parcels sold to it.
Bell, Abraham and Parchomovsky, Gideon, "Partial Takings" (2017). Faculty Scholarship. 1736.
Constitutional Law Commons, Land Use Law Commons, Law and Economics Commons, Law and Society Commons, Legal Remedies Commons, Policy Design, Analysis, and Evaluation Commons, Property Law and Real Estate Commons, Public Economics Commons, Public Policy Commons, Real Estate Commons, State and Local Government Law Commons, Urban Studies Commons