Government seizure of private land, also known as expropriation, may be direct or indirect. Direct expropriation is rare and equates to an actual change in ownership of the land; whereas indirect expropriation is a loss of economic viability of land due to excessive regulation.
In the United States, property may be regulated to a certain extent, but if the regulation crosses a threshold (determined on a case by case basis) then compensation is required . There are two categories of expropriation in the USA, the first being a physical invasion of property, and the second being a regulation of property resulting in the deprivation of any real value from the land. In both cases, compensation is typically required under The Fifth Amendment (although usually recognized as the right to silence, the amendment also requires compensation for the taking of property ). However, the right to compensation is limited if there is a pre-existing or legislated approval to expropriate without compensation.
Comparatively, in Canada there is an expropriation test which requires that the state has a beneficial interest in the land, and the land must be deprived of all reasonable uses . The regulation of land use, even if resulting in a decreased value to the property, is not considered an expropriation and therefore is not entitled to compensation. Under the Expropriation Act, land can be directly taken (an actual change in ownership) from individuals so long as the detailed procedural requirements are adhered to, and there are provisions relating to when and how to compensate the individual. Nevertheless, similar to the United States when legislation exists to the contrary, the right to compensation does not apply .
The Magna Carta of 1215 states that any man cannot be deprived or dispossessed of his land, without the lawful judgement of his equals. Although the laws today derive from this basic provision of the Magna Carta, it appears that “lawful judgement of his equals” has been replaced with “unless legislation says otherwise”.
When do you think compensation for expropriation should be required? Or should expropriation of private land be completely disallowed? Give us your feedback in the comments below or via twitter at @msmagnacarta !
 Pennsylvania Coal Co v Mahon, 260 US 393 (1922)
 Lucas v South Carolina Coastal Council, 112 S. Ct. 2886 (1992)
 Mariner Real Estate Ltd v Nova Scotia (AG) (1999) 177 DLR (4th) 696, 178 NSR (2d) 294 (CA)
 Canadian Pacific Railway Company v City of Vancouver, 2006 SCC 5