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

Legal
Published

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.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Awards | Leading Suppliers Council

Jan 28, 2026

Transparent Flashing from Typar Earns 2026 Spark Innovation Award

The NAHB Leading Suppliers Council (LSC) recently announced that Typar’s Clear Acrylic Flashing is the winner of the 2026 Spark Award. The flashing is the first and only product of its kind on the market that allows the pattern on window nailing fins to be completely visible upon installation.

Housing Finance

Jan 27, 2026

FHA Extends Temporary Waiver for New Single-Family Flood Elevation Requirements

The Federal Housing Administration (FHA) announced today the extension of a temporary waiver for new construction in Special Flood Hazard Areas as part of the Federal Flood Risk Management Standard requirements issued by the Department of Housing and Urban Development.

View all

Latest Economic News

Economics

Jan 28, 2026

Holding Pattern for the Fed

The Fed paused its easing cycle at the conclusion of the January meeting of the Federal Open Market Committee, the central bank’s monetary policy body. The Fed held the short-term federal funds rate at a top rate of 3.75%, the level set in December. This marked the first policy pause since the Fed resumed easing in September of last year.

Economics

Jan 27, 2026

State-Level Employment Situation: December 2025

With few exceptions, year-over-year nonfarm employment levels were relatively stable across states at the end of 2025, ranging from a decline of 4.2 percent to a gain of 1.8 percent. Construction employment, however, showed considerably greater dispersion, with declines of up to 9.3 percent in some states and gains approaching 9.0 percent in others.

Economics

Jan 26, 2026

Pool Permitting Falls Lower in 2025

After a rapid expansion of residential swimming pool and spa construction following the pandemic, permit levels in the latest monthly index for December fell to their lowest level since 2020.