Real Estate Terminology

The power of promoting the interests of society as a whole by limiting the freedom of an individual to act or use his property at will. In particular, the constitutional power available to a sovereign authority to legislate so as to impair the use or value of private property for the benefit of the public at large. The right of a government, especially of a state, to restrict, regulate and control the individual’s free use of land and buildings by law and precept—as by taxation, public health and building regulations, zoning ordinances, and pollution or environmental controls and, in some jurisdictions, rent control. A power that may be exercised, without compensation, provided it is intended for the public good; is not aimed to affect only one individual or only one parcel of land; is not clearly arbitrary and unreasonable; and has a reasonable relation to the public health, safety, morals, peace and quiet or general welfare (Commonwealth v. Alger, 7 Cush 53 (Mass 1851); Hadacheck v. Sebastian, 239 US 394, 36 S Ct 143, 410–11, 60 L Ed 348, 356 (1915); Village of Euclid v. Amber Realty Co., 272 US 365, 47 S Ct 114, 71 L Ed 303, 314 (1926); Berman v. Parker, 348 US 26, 75 S Ct 98, 99 L Ed 27, 37—Anno: Federal Police Power (1954)).

‘Police power’ is based on the maxim sic utere tuo et alienum non lædas, ‘so use your own property as not to injure another’s’; and has developed into the power of the state to limit the unhindered use of land—"the powers of government inherent in every sovereignty to the extent of its dominions. … the power to govern men and things within the limits of its dominion" License Cases, 5 Howard 504, 46 US 504, 581, 12 L Ed 256, 291 (1847) (American Federation of Labor v. American Sash & Door Co., 67 Ariz 20, 189 P.2d 912, 916, 6 ALR2d 481 (1948); 16A Am.Jur.2d., Constitutional Law, § 361). The principle of ‘police power’, although of Anglo–Saxon derivation, may be applied to the regulation of any developed civilization. However, in the US, the term is more generally used to refer to the authority conferred on the individual states by the Tenth Amendment to the Constitution and, in turn, delegated to local governments, through which the states are enabled to regulate the activity of the individual, in particular in his or her use of property. This ‘police power’, which may be used to control and regulate the use of land, may be distinguished from eminent domain, for the latter involves "the ‘taking’ of property because of its need for public use while the former involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest. The police power may be loosely described as the power of the sovereign to prevent persons under its jurisdiction from conducting themselves or using their property to the detriment of the general welfare" 1 Nichols on Eminent Domain (Rev. 3rd ed.), § 1.42. On the other hand, if the exercise of police power goes so far as to totally impede the proper or beneficial use of land, or if it amounts to a restriction not truly related to the regulation the development, then it may amount to a ‘taking’ and, therefore, require the payment of just compensation to the landowner (Pennsylvania Coal Co. v. Mahon, 260 US 393, 416, 43 S Ct 158, 67 L Ed 322, 28 ALR 1321 (1922); Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed.2d 304, 323 (1994); Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1074–6 (11th Cir. Fla 1966)). cf. inverse condemnation. See also aesthetic, building controls, bundle of rights theory, condemnation, escheat, ordinance.

Terms in bold are defined elsewhere in the hard copy of the Encyclopedia.