Overzealous Engineering: Does the Property Owner Really Want That Temporary Construction Easement?

Often times, I encounter a project design that includes a temporary construction easement (TCE) which purpose is for the agency to reconfigure/restripe an entire parking lot, or reconstruct landscaping being altered by a taking (for example, a street widening project).  As the matter moves closer to condemnation, it is not uncommon for the property owner to take issue with either the TCE itself, the proposed work being done, or the potential interference the work will have on the property’s use. 

In these circumstances, sometimes the owner’s preferred approach is to do the work his or herself, scheduled to occur at times convenient to the owner, and in a manner different than proposed by the agency.  The agency can capitalize on this preference by using the alternative approach of including in the owner’s compensation package the cost of constructing the improvements (i.e., cost-to-cure).  This often leads to a win-win scenario:  the agency doesn’t need to pay the value of the use of the TCE area (which often is for a larger time and at a larger size than actually necessary for the work being done) and often avoids significant claims regarding interruption with the use of the property; at the same time, the owner gains flexibility to do (or not do) the work his or her own way, while still being compensated for it. 

The takeaway?   Before including TCEs as part of a project for restorative work, make efforts to consult with the property owner to see if he or she would prefer a lump-sum payment as a cost-to-cure.

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