4.7.2. Temporary Inverse Takings.The measure of compensation for temporary inverse takings is the same as for other temporary acquisitions—that is, the market rental value of the property acquired for the term of the acquisition.953 Temporary inverse takings may be physical or regulatory in nature.954 And whether a compensable temporary inverse taking occurred will be determined by the court, using a “more complex balancing process” than in alleged permanent takings.955 

Similarly, whether an alleged inverse taking is temporary or permanent is a legal question requiring legal instruction. In deciding this issue, “[t]he essential element of a temporary taking is a finite start and end to the taking.”956 This determination can have a significant impact on the valuation, and therefore on the amount of compensation awarded.957 Indeed, the Supreme Court has held that until it is determined a taking is permanent or temporary, “it would be premature . . . to consider whether the amount of the award . . . was proper.” 958 Accordingly, the appraiser must receive appropriate legal instructions regarding the precise terms of the property interest(s) to be valued in an alleged inverse taking. 

The Supreme Court recently held that recurrent floodings, even if of finite duration (i.e., temporary), are not categorically exempt from Takings Clause liability.959 Alleged takings of this sort are therefore subject to the same liability and valuation inquiries as other types of inverse takings.960