Master U.S. Supreme Court establishes a per se rule that permanent physical occupations of property authorized by the government are takings requiring just compensation. with this comprehensive case brief.
Loretto v. Teleprompter Manhattan is a cornerstone of modern takings jurisprudence that draws a bright-line distinction between regulatory limits on property use and government-authorized physical invasions. The Supreme Court held that even a small, seemingly trivial installation of cable television equipment on a landlord’s building—when mandated by statute and permanent in duration—constitutes a per se taking under the Fifth and Fourteenth Amendments. This ruling reflects the constitutional primacy of the right to exclude and the special status of physical occupations as uniquely serious infringements on property rights.
For students, Loretto is the canonical case explaining why compensation is required when the government appropriates a discrete real property interest, regardless of economic impact. It anchors one of the categorical takings rules, contrasted with the ad hoc balancing of Penn Central, and reverberates through later cases involving access rights, easements, and compelled third-party occupations, including Kaiser Aetna, FCC v. Florida Power, Horne, and Cedar Point Nursery.
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
New York enacted a statute (commonly referred to as § 828) that required landlords to permit cable television companies to install cable facilities on their properties and prohibited landlords from demanding compensation beyond amounts set by a regulatory authority. Teleprompter Manhattan installed a length of coaxial cable on the roof and along the exterior wall of an apartment building in Manhattan, along with two small metal junction boxes, to provide cable service to tenants. After Jean Loretto purchased the building, she discovered the installation and sued Teleprompter for trespass and a taking, arguing that the statute authorized a permanent physical occupation of her property. New York’s regulatory body set standard compensation at one dollar, and the New York Court of Appeals held there was no taking because the physical occupation was minimal and served important public purposes. The U.S. Supreme Court granted certiorari to resolve whether such a mandated, permanent physical occupation—however small—constitutes a taking requiring just compensation.
Does a state law that authorizes and requires a permanent physical occupation of private property by a cable company constitute a taking under the Fifth and Fourteenth Amendments, regardless of the occupation’s size or economic impact?
A permanent physical occupation authorized by the government is a per se taking that requires just compensation, without regard to the public interests advanced or the economic impact on the property owner. The constitutional analysis turns on the character of the invasion: when the government (or a third party acting with governmental authority) permanently occupies space on private land or appropriates a stick from the owner’s right to exclude, a taking has occurred.
Yes. The statute’s authorization of a permanent physical occupation of Loretto’s building by cable television equipment constitutes a per se taking, requiring just compensation. The Court reversed the New York Court of Appeals and remanded for proceedings to determine just compensation.
The Court, in an opinion by Justice Marshall, emphasized that the "character of the governmental action" is pivotal in takings analysis. Permanent physical occupations are categorically different from use restrictions because they destroy three core incidents of ownership in the occupied area: the rights to possess, to use, and to exclude. The right to exclude, in particular, is one of the most essential sticks in the bundle of property rights. By compelling landlords to host third-party equipment indefinitely and granting the cable company access for installation and maintenance, the statute effectively imposed a servitude on the property. This appropriation occurs regardless of how small the physical footprint is or how socially beneficial the program may be. Rejecting a de minimis exception, the Court reasoned that any permanent occupation obliterates the owner’s dominion over the occupied space and thus must be treated as a per se taking. The Court contrasted permanent occupations with general regulations subject to Penn Central’s ad hoc balancing, and distinguished cases like PruneYard, where the access was temporary and nonexclusive, and the owner retained control over the property’s use. The Court underscored that the takings clause does not bar government action for public purposes; it simply requires that when the government appropriates a property interest, it must pay just compensation. Accordingly, even though the compensation owed for a minor occupation may be modest, the constitutional obligation to compensate is categorical. The Court remanded to determine the amount of just compensation, making clear that the statute was not invalid per se but triggered the compensation requirement.
Loretto establishes a bright-line, per se rule: government-authorized permanent physical occupations are takings, no matter how small or economically trivial. It defines a categorical zone of takings distinct from the flexible Penn Central framework and elevates the right to exclude as central to property ownership. The decision has enduring relevance across contexts where the state compels owners to host third-party infrastructure or grants access rights—cable lines, utility attachments, and other easements. Subsequent cases build on Loretto’s logic. In FCC v. Florida Power, the Court found no taking where utilities voluntarily leased space on poles at regulated rates, emphasizing the absence of compelled access. In Kaiser Aetna, compelled public access to a private marina was a taking due to the appropriation of the right to exclude. Horne extended per se takings to personal property. Cedar Point Nursery reframed the analysis of access easements, holding that government-authorized third-party access to land appropriates the right to exclude and is a per se taking, even if access is intermittent rather than literally continuous. For law students, Loretto is foundational to spotting per se takings, distinguishing physical occupations from use restrictions, and understanding how compensation is calculated even where the physical intrusion is small.
No. Loretto’s per se rule applies to permanent physical occupations or government appropriations of a discrete property interest (such as an access easement) that destroy the owner’s right to exclude in the occupied space. Temporary or intermittent invasions that do not appropriate a continuous occupation are generally evaluated under Penn Central’s balancing, unless they functionally appropriate a right of access (as clarified in Cedar Point Nursery).
Permanence refers to the nature of the entitlement: an ongoing, indefinite right to occupy that runs with the property and cannot be unilaterally terminated by the owner. In Loretto, the cable equipment and associated access rights were required to remain for as long as service was provided and included maintenance access—an enduring servitude. The rule does not turn on literal forever duration but on whether the owner’s right to exclude is appropriated on an ongoing basis.
The per se rule triggers compensation but does not dictate the amount. Just compensation typically reflects the fair market value of the interest taken—often the rental value of the occupied space or the value of the imposed servitude. For tiny installations, compensation may be nominal, but it must be judicially ascertainable rather than categorically denied.
No. The Court held that the statute effects a taking to the extent it mandates a permanent physical occupation. That determination requires payment of just compensation; it does not automatically invalidate the statute. On remand, courts assess the appropriate compensation.
Loretto carves out a categorical per se rule for permanent physical occupations, while Penn Central provides a flexible, multifactor test for non-possessory regulations. Cedar Point Nursery extended Loretto’s core insight—appropriations of the right to exclude are per se takings—holding that even time-limited access rights imposed by regulation can be categorical takings when they grant third parties an entitlement to physically enter private land.
Because the constitutional harm is the appropriation of a property interest, not the size of the footprint. A permanent occupation displaces the owner’s control and right to exclude in the occupied space, which the Court deemed categorically compensable to preserve clear constitutional boundaries and prevent erosion of property rights through incremental invasions.
Loretto v. Teleprompter Manhattan draws a bright constitutional line: when the government mandates a permanent physical occupation of private property or appropriates an owner’s right to exclude in a defined space, a taking has occurred and just compensation is required. The case rejects de minimis arguments and shifts focus from economic impact to the character of the intrusion, emphasizing the centrality of the right to exclude in the property framework.
As a practical matter, Loretto gives courts and litigants a stable rule for identifying per se takings while preserving regulatory flexibility for non-possessory restrictions under Penn Central. Its logic continues to shape modern access-rights and infrastructure disputes, ensuring that public ends are pursued with the constitutionally required means of compensation when property interests are appropriated.