Brief Fact Summary. A man was served with a restraining order, which prevented him from entering his house.
Synopsis of Rule of Law. Three elements must be established to constitute a taking: (1) state action; (2) which affects a property interest in the constitutional sense; and (3) which deprives the owner of all beneficial use of his or her property.
To constitute a taking in the constitutional sense, so that the State must pay compensation, the state action must deprive the owner of all beneficial use of the property.View Full Point of Law
Issue. Is an order barring someone from his marital home a taking of property without just compensation?
Three elements must be established to constitute a taking: (1) state action; (2) which affects a property interest in the constitutional sense; and (3) which deprives the owner of all beneficial use of his or her property. If all three are met, the state must pay compensation for the deprivation.
The injunction by the court is state action. A property interest was affected because it is a temporary deprivation of a possessory interest.
Plaintiff did not lose all beneficial interest in the property. By Defendant remaining in the property, he avoided the possibility of having to provide her with alternative housing while the divorce was pending.
All three factors were not met, so there is no taking of property.
Discussion. In a domestic abuse situation, the abuser can be barred from entering the marital home for a temporary period without being a taking. The abuser does not have to pay for additional housing for his victim-spouse, so he is still receiving a benefit from his property.