Right To Take

Doing it the Right (of) Way: Recommended Steps for the Acquisition of Real Property by Eminent Domain

About

The field of condemnation law is specialized and narrow.  Without an active eminent domain practice or a sophisticated acquisition staff, it can be difficult—if not impossible—for a public entity attorney to avoid the most common pitfalls.  It is the purpose of this blog to share my  17  years of expertise and experience in eminent domain law to help inform the practitioner and acquisition staff about eminent domain issues which may be less than obvious. With a framework for understanding the specialized issues of condemnation law, I hope to empower every right-of-way professional to know how best to proceed when they’re facing an eminent domain issue.

Recent Posts

Don’t Forget to Include a Fair Description of the Public Use

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The resolution of necessity must contain a general statement of the public use for which the property is to be taken. Code of Civil Procedure § 1245.230(a) requires only a general description.  For example, a general description of a project might…

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Golf Courses

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California Government Code § 37353 is a state law that sets limits on how local governments in California can acquire property—including when it comes to golf courses. While broadly authorizing certain types of municipal property acquisition, the statute contains an…

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Review for CEQA Compliance

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Staff or public agency counsel should confirm the proposed property acquisition complies with the California Environmental Quality Act (CEQA).  This should be done before the agency adopts a resolution of necessity authorizing the property’s condemnation.  Reason.  The right to take…

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Considerations in the Selection of a Real Estate Appraiser

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As many of you know, an offer based on an appraisal must be made to the property owner before the condemnation process may be pursued. This requires the retention of what is often referred to as a “precondemnation” appraiser. A…

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Voluntary Abandonment

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Any time after an eminent domain complaint is filed, including after a final judgment, a public agency may voluntarily abandon the condemnation.  This means that the property is no longer being taken, and as a result the owner receives no…

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Consider a Relocation/Construction Agreement as an Alternative to a Temporary Construction Easement

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A partial taking often necessitates that alterations be made to the remaining property so that it may best adapt to the changed circumstances caused by the taking.  In an earlier post from November 19, 2020, I questioned whether a temporary…

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Liens, Part 2:  No Penalty for Prepayment of Liens Not Yet Due

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Often times, deeds of trust or other security interests arising from contract, statute, common law, or equity, include a penalty for paying off the lien before it is due.  There are a number rules that apply to whether and how…

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Condemnation Deposit Update

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Most precondemnation deposits of probable compensation are sent to the State Treasury as provided in Section 1255.010 of the Code of Civil Procedure.  (See Code Civ. Proc. § 1255.070)  That money is held, invested, deposited and disbursed in the manner…

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Liens

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It is a common perception that lienholders like to be paid first when a property owner is compensated following the acquisition of property.  However, California’s Eminent Domain Law thinks differently when only a partial taking occurs. Section 1265.225(a) of the…

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Condemning Future Interests – Part 2

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In my last post, I discussed how contingent future interests are valued, where it is shown the contingent future interest holders are entitled to compensation under Section 1265.410(a)(1).  But what if they are not?  What are the rules for valuing…

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Condemning Future Interests – Part 1

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Where there are contingent future interests in property acquired by eminent domain, the future interest holders may be entitled to compensation. This is because the value of the fee owner’s interest in the property is diminished to the extent of…

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What is a Disclaimer?

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A public agency’s goal in condemning property is often to acquire it free of all claims by third parties to any of the “bundle of rights” associated with it.  For this reason, agency attorneys typically name as defendants all of…

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