The Virginia General Assembly passed a number of different changes to Virginia’s eminent domain code this year, most of which are contained in SB1158. (The changes to 25.1-204 dealing with title reports were covered in our post last week here.)
SB1158 makes a change to Va. Code 8.01-187. That code section already provides a statutory cause of action for inverse condemnation in Virginia. This year’s change to it clarifies that the court can determine just compensation in those cases. Generally there is a bench trial for the declaratory judgment liability portion of cases in that statute, followed by a jury or commissioner’s trial on damages, but apparently someone wanted to clarify that you can also have a bench trial there (even though that clarification was likely unnecessary to enable such a bench trial to occur by agreement of the parties).
An edit to Va. Code 15.2-1906, “Condemnation of existing water or sewage disposal systems”, changes the word “commissioners” to “body determining just compensation” to clarify allowing for the usual choice of bench trial, jury trial, or commissioners trial.
An edit to a cross-reference in § 25.1-234, “Participation by certain tenants in proceedings to determine just compensation”, corrects a longstanding typographical error in the code. For some years this section has said “such tenant shall file his petition for intervention, in the manner provided in § 25.1-221”. However, 25.1-221 specifies “Unless any party demands a separate hearing on the issue of just compensation, the court may consolidate for trial two or more petitions.” Va. Code 25.1-221 obviously has nothing to do with petitions for intervention. This year’s edit changes 25.1-234 to instead reference 25.1-218, which does deal with intervention in proceedings.
An edit to § 25.1-244, “Interest on award; entry of judgment for award and interest”, changes how interest is calculated and the rate for the interest. This particular code section is the interest rate for slow take cases where the right to possession pendente lite, i.e. a statutory right of entry, is exercised prior to the condemnation award. Interest in this situation up until this change was simple interest, but come 2026, interest in this situation will be compounded daily. The current language allows for interest at the “the general account’s primary liquidity portfolio rate” (usually a very low rate) but the new language changes that to the statutory judgment interest rate (currently 6% as of the date of this post).
An minor edit to § 25.1-245.1, “Costs,” provides as follows:
The requirements of this section shall not apply to those condemnation actions initiated by a public service company, public service corporation, railroad pursuant to the delegation of the power of eminent domain granted in Title 56, or government utility corporation, as defined by § 1-219.1, involving easements adjudged at in which no property is taken in fee simple and just compensation is determined to be less thanv$10,000.
While many of these changes are minor or extremely technical, the change to § 25.1-307, Content of certificates; recordation of certificates, is significant, adding additional requirements for the content of certificates of take in Virginia.
25.1-307. Content of certificates; recordation of certificates.
A. A certificate shall set forth the description of the property and rights being taken or damaged, and the owner or owners, if known, of such property. A certificate through which easement rights are acquired shall describe the rights and purposes for which the easement is being acquired.
B. The certificate shall include a plat, drawing, or plan, in sufficient detail to disclose fairly the nature of such work or improvements, including specifications, elevations, and grade changes, if any, so as to enable the owner of such property to be reasonably informed of the nature, extent, and effect of such taking. The certificate shall specify the size of the fee or easement area being taken and, if multiple overlapping easements are taken, the sizes of the overlapping and non-overlapping areas. The certificate shall also state the public use project for which the property is being taken.
C. If a temporary construction easement is being acquired, the certificate shall set forth the calendar date on which it shall expire if that date is known to the condemnor. If the condemnor certifies that such date is not known, at such time the condemnor ascertains the date, the condemnor shall file certification of the information as provided by subsection B D and shall simultaneously provide the landowner or the landowner’s counsel, if any, a copy of such certification.
B D. The authorized condemnor shall record a certificate of take or a certificate of deposit in the clerk’s office of the court where deeds are recorded. The clerk shall record the certificate in the deed book and index it in the names of both (i) the person or persons who owned the land before the recordation of the certificate and (ii) the authorized condemnor.
Condemning authorities should definitely be aware of this significant expansion of the required contents for certificates of take.
For our review of the rest of this years changes to the eminent domain code, tune in for Part II of this article next week.
What changes, if any, would you like to see in Virginia’s condemnation code that would actually benefit the condemning authority? Feel free to comment or message here, or on our LinkedIn page, about that as we would love to hear ways that the condemnors can improve the process.
Ross Greene is a firm shareholder and chair of the firm’s Eminent Domain / Right of Way Practice Group. He focuses his practice in the areas of eminent domain, real estate, wills, trusts, estates, and business matters.
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