U.S. Supreme Court Embraces Property Owner’s Right to Exclude

The U.S. Supreme Court today issued a Fifth Amendment “takings” decision that is a win for property owners. The Fifth Amendment provides that the government may not take private property unless it pays the owner just compensation.

In this case, a California regulation granted labor organizers a right to access a farmer’s property to solicit support for unionization. The regulation allowed the organizers access for up to three hours a day, 120 days per year. The farmer argued that allowing the organizers on their property was an unconstitutional “physical taking” of their property.

The majority of the Supreme Court agreed. Chief Justice John Roberts, joined by five other justices, explained that the a “central importance” of property ownership is the “right to exclude” others.

The lower court and the dissent took the view that the regulation did not cause a ”physical taking“ because it did not allow a permanent and continuous invasion (24 hours a day, 365 days per year) of the farmer’s property.

The Supreme Court majority tore apart this argument by explaining that it does not matter if the government only invades a person's property for 364 days, instead of 365 days; the fact that the invasion is from time to time does not make it any less physical.

In its conclusion, the Supreme Court did recognize that not all government invasions of private property require compensation. It provided examples of making an arrest, requiring a landowner to provide access in exchange for a permit, or abating a nuisance on private property. None of these amount to a taking of private property.