Order of Possession Pitfalls: Determining Who Are “Occupants” When Serving a Motion for Prejudgment Possession

The Eminent Domain Law allows condemning agencies to ask for permission to obtain possession of the condemned property before trial.  This involves filing a motion with the court and serving a copy of the motion “on the record owner of the property and on the occupants, if any.”   See Code of Civil Procedure §1255.410(b).

Determining precisely who the “occupants” are can be a tricky issue.  Clearly, tenants in a full-take situation are occupants under the statute.  But what about a partial taking involving a 5-foot landscaping strip adjacent to the street that does not touch any of the buildings or parking improvements?  Clearly, the larger parcel is occupied, but does the term “occupant” refer to persons occupying the entire larger parcel, or only the part being taken?

Unfortunately, there is no law on this issue.  Thus, condemnation counsel are forced to weigh the burden of serving unaffected tenants with a motion for possession against not doing so, which carries the potential risk that the judge may deny the motion on grounds that it was not served on the occupants.

I welcome any thoughts or experiences you readers may have had regarding this issue.

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