Consistent with my Practice Tip to Avoid the Potential for Precondemnation Damages (November 14, 2017), I always recommended that public agencies proceed with the precondemnation process in a noncommittal and conditional manner. This is because evidence showing that the agency has pre-committed to the acquisition can be used to challenge the agency’s otherwise lawful adoption…
Substitute Acquisitions to Provide Access
The Eminent Domain Law allows for the condemnation of property to replace property being taken from a private owner with other, substitute property. These acquisitions are referred to as “substitute takings.” One common situation occurs where a property acquisition and project cuts off another property owner’s access to utility service or public roads. Section 1240.350(a)…
Offsite Public Improvements As A Map Condition And Developer-City Acquisition Agreements
Oftentimes, an offsite acquisition is required to construct a public improvement required by the city as a condition of a subdivider’s development project, and the offsite improvement is not complete when the subdivider files a final map for approval. For example, a subdivider’s development may be conditioned upon the construction of a roadway leading up…
How to Approach Closing Costs
Closing costs are fees–including escrow and title fees–associated with the purchase of real property that are paid at the close of escrow. In typical arms-length transactions, both sellers and buyers are responsible for paying some amount of the closing costs. As discussed below, special treatment should be given to closing costs in an eminent domain…
Admissions of Value in Cost Studies and Budget Reports
During the precondemnation process, public agency staff may be asked to make written estimates of the value of properties that are needed for an upcoming project. Similarly, a budget for a proposed project may call for such estimates. Often these estimates are well above market value because they include acquisition costs as well as unrelated…
Limits on the Right to Take
There are many common and not-so-common situations where a public entity may not have the power of eminent domain. These include: Property sought is outside the public entity’s territorial limits. Staff might propose to acquire property outside the public entity’s territorial limits. Extra-territorial takings are permitted in only certain circumstances. Property sought is in excess…