Time to Make an Election

Did you know that where there are divided interests in property acquired by eminent domain, the condemning agency is entitled to elect how the property is to be valued?

Condemnors have the right to elect that the amount of compensation be first determined as between plaintiff and all defendants claiming an interest in the property. Thereafter, in the second phase of the case, the trier of fact then determines the respective rights of each of the defendants in and to the amount of compensation awarded and apportions the award accordingly.  Stated differently, first the size of the pie is decided, then the court determines how large each of the defendants’ slices of pie will be. See Section 1260.220(b) of the Eminent Domain Law.

In the absence of such an election, the value of each interest and the injury, if any, to the remainder of such interest will be separately assessed.  This is generally not advisable, as the sum of each interest can in some cases add up to more than the value of the entire property being taken. 

Section 1260.220 does not indicate how to the agency is to make this election.  One common practice is to include the election at the end of the condemnor’s complaint in eminent domain (commonly known as the “prayer”).

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