William and Mary Law School

The Fifth Amendment Requires the Government to Pay an Owner Interest Equal to What the Owner Could Have Earned Had the Government Paid the Owner the Fair-Market Value of Their Property on the Date the Government Took the Owner’s Property  

Mark F. (Thor) Hearne, II, Steven Haskins, & Meghan S. Largent

In this article, we review how the Fifth Amendment, and the Supreme Court’s jurisprudence applying the Fifth Amendment, require the government to pay a property owner the full fair-market value of property the government has taken, together with interest in an amount sufficient to fairly and fully compensate the owner for the government’s delay in rendering the owner payment for that property which the government took.The government must pay interest equal to the return an owner would have earned on the fair-market value of the property taken had the government actually paid the owner this money on the date the government took the owner’s property. The appropriate interest rate—just like the value of the property taken—must be established by reference to the market at the time of the taking.

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1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 3 (2012)