---
title: "Per Se Takings (Lucas)"
type: Legal Rule
source: https://casebriefly.com/legal-rules/per-se-takings-lucas
---

# Per Se Takings (Lucas)

When a regulation deprives a property owner of all economically beneficial use of the property, it constitutes a per se taking requiring just compensation, unless the restriction inheres in the background principles of the state's property or nuisance law.

## Definition

The Lucas per se takings rule, established in Lucas v. South Carolina Coastal Council (1992), holds that when a government regulation deprives a property owner of all economically beneficial use of the property, it constitutes a per se taking that requires just compensation without the need for the ad hoc balancing inquiry of Penn Central. This categorical rule reflects the principle that a total regulatory wipeout of property value is functionally equivalent to a physical appropriation.

The rule has one important exception: no compensation is required if the government can demonstrate that the prohibited uses were not part of the owner's title to begin with -- that is, the restrictions inhere in the background principles of the state's property and nuisance law. Under this exception, the government is not taking anything because the owner never had the right to use the property in the proscribed manner. For example, if a landowner's property sits on a floodplain and state nuisance law would have prohibited construction there anyway, a regulation prohibiting development would not require compensation because the right to build never existed.

The Lucas test applies only in the rare circumstance where a regulation eliminates all economically beneficial use. If even a small residual economic value remains, the claim falls under the more flexible Penn Central balancing test. The Court in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) held that temporary development moratoria generally do not trigger the Lucas per se rule because the temporary nature means the owner retains value over the full life of the property. The Lucas test thus occupies a narrow but important space in takings law.

## Elements

- The regulation must deprive the owner of ALL economically beneficial use of the property (a total economic wipeout)
- If all economic value is destroyed, a per se taking has occurred requiring just compensation
- Exception: no taking if the restricted use was never part of the owner's rights under background principles of state property or nuisance law
- If any residual economic value remains, Penn Central balancing applies instead
- Temporary restrictions generally do not qualify as total takings under Lucas

## Key Case

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Lucas v. South Carolina Coastal Council | 505 U.S. 1003 (1992) | Established that a regulation depriving an owner of all economically beneficial use is a per se taking unless justified by background principles of state property or nuisance law |
| Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency | 535 U.S. 302 (2002) | Held that temporary development moratoria are not per se total takings and should be analyzed under Penn Central |
| Palazzolo v. Rhode Island | 533 U.S. 606 (2001) | Held that a landowner who acquires property after the regulation is enacted is not automatically barred from bringing a takings claim |

## Exam Tips

- Lucas applies only when ALL economically beneficial use is eliminated -- this is a very high bar and rarely met
- If any residual value remains, apply Penn Central instead of Lucas
- Know the background principles exception: if the restricted use was always prohibited under state nuisance or property law, no taking occurred
- Remember that temporary restrictions like development moratoria generally do not trigger Lucas (Tahoe-Sierra)

## Common Mistakes

- Applying Lucas when some economic value remains -- even a small residual value pushes the analysis to Penn Central balancing
- Forgetting the background principles exception, which is the government's primary defense in a Lucas total-wipeout case
- Treating all severe regulatory burdens as total economic deprivations -- Lucas is reserved for the rare case of complete value destruction

## Mnemonic Or Memory Aid

Lucas = Total Wipeout Rule. ALL value gone = per se taking, UNLESS the owner never had the right under state nuisance/property law.

## Related Rules

- takings-clause-eminent-domain
- regulatory-takings-penn-central
- due-process-clause-substantive

---
Source: [Per Se Takings (Lucas) — CaseBriefly](https://casebriefly.com/legal-rules/per-se-takings-lucas)