Partial Takings

52 Pages Posted: 24 Feb 2017 Last revised: 2 Jan 2018

Abraham Bell

Bar Ilan University - Faculty of Law; University of San Diego School of Law

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Date Written: 2017

Abstract

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.

Keywords: Partial Takings, Incomplete Takings, Asset Fragmentation, Eminent Domain, Takings, Takings Compensation, Just Compensation, Options Theory, Put Option, Assessment, Valuation

JEL Classification: H82, P14, P16, K11, K49

Suggested Citation

Bell, Abraham and Parchomovsky, Gideon, Partial Takings (2017). Columbia Law Review, Vol. 117, p. 2043, 2017; U of Penn, Inst for Law & Econ Research Paper No. 17-12; San Diego Legal Studies Paper No. 17-277. Available at SSRN: https://ssrn.com/abstract=2922756

Abraham Bell (Contact Author)

Bar Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

HOME PAGE: http://law.biu.ac.il/English/segelE.php#

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Gideon Parchomovsky

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
Israel
972-2-5317078 (Phone)

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