Bill that Would Overhaul Condemnation Procedures and Requirements for Temporary Easements Pending in Virginia

A bill currently pending before the Virginia General Assembly would bring about a number of changes to condemnation procedures, the most significant of which may be the requirements for temporary construction easements.

Under current law, a condemning authority in a quick-take case may include temporary easements in their certificate without a set end date.  Thus, an authority can take an easement that permits construction activities in a certain area and easily accommodate construction delays because the easement is understood to only expire when the project is complete.  The bill would change that by requiring the authority to specify the calendar date on which any temporary easement provided for in a certificate expires.  It also requires the authority to file a “certificate of completion” within 90 days of completion of construction that states that construction is complete and temporary acquisitions have terminated.

The law does not specify the consequences of failing to complete the project by the date the temporary easements expire in the certificate.  The best-case scenario is that the certificate can be amended to extend the expiration date.  However, courts may interpret such a move as adding property not included in the original certificate, which would run afoul of the prohibition in Va. Code § 25.1-312(D).  Thus, at worst, the bill would require the condemning authority to file a new certificate and institute a new case to take an additional temporary easement.  If the bill passes, localities would be well-advised to avoid this uncertainty by overestimating the time needed for the easements to account for contingencies.

The bill also makes changes to the requirements for title searches.  Under current law, the authority must perform an examination of title of indeterminate length to determine the owners of the property and the nature and extent of each owner’s interest, then provide a copy of the report of status of title to the owners. The bill would specify that the title search must extend back at least 60 years.  In addition to the title report, the authority would also be required to provide to the owners copies of every instrument identified in the title report.

The bill also changes the law about owner-initiated petitions in condemnation cases.  If a condemning authority has not filed a petition for condemnation within a set time from when the certificate is filed, the owner may file a petition for condemnation.  The bill provides that, if the owner does so, the owner will have the burden of proceeding with evidence as to just compensation, but the condemning authority will be required to reimburse the owner for attorney’s fees and costs incurred in filing the petition.

The bill would also amend the statute pertaining to the award of costs to liberalize such awards to owners.  Under current law, a court may award an owner up to $1,000 for a survey of the remainder after the take.  The bill would raise the amount specified in the statute to $7,500 and would permit owners to recover additional amounts with court approval.  It also specifies that the cost section should be “liberally construed” to ensure that owners receive the full measure of just compensation without reduction due to costs incurred in asserting their right to just compensation.

The bill, Senate Bill 694, passed the Senate unanimously and has been referred to the House for consideration.  The current text of the bill may be found here.  The bill’s progress can be tracked here.

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