What has to be included in your title report in if you want to proceed to condemnation of a property in Virginia? This important but somewhat arcane technial point has been the subject of quite a bit of legislative change and litigation in Virginia in the last couple years. This year’s General Assembly session has changed the applicable code section yet again. HB1690 makes some significant changes, effective July 1, 2025,  that you will need to know if you are doing right-of-way projects in Virginia.

Currently the applicable code section, 25.1-204(D), last updated in 2022, provides that

 

D. Notwithstanding any provision of law to the contrary, a condemnor, prior to making an offer to acquire a fee simple interest in property by purchase or filing a certificate of take or certificate of deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) or § 33.2-1019, shall (i) conduct or cause to be conducted an examination of title to the property in order to ascertain the identity of each owner of such property and to determine the nature and extent of such owner’s interests in the property, which examination of title shall be for at least 60 years; (ii) provide to such owner or owners a copy of the report showing the examination of title; and (iii) provide to such owner or owners a copy of all recorded instruments within the 60-year title history of such property, including all deeds of trust, releases, liens, deeds, or other instruments identified in the report.

Come July 1, that will change to the following language:

D. Notwithstanding any provision of law to the contrary, a condemnor, prior to making an offer to acquire a fee simple interest in property by purchase or filing a certificate of take or certificate of deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) or § 33.2-1019, shall (i) conduct or cause to be conducted an examination of title to the property in order to ascertain the identity of each owner of such property and to determine the nature and extent of such owner’s interests in the property, which examination of title shall be for at least 60 years and shall be documented in a report showing all matters that affect the current ownership, existing liens, encumbrances, and other matters affecting title as of the date of the title report; (ii) provide to such owner or owners a copy of the title report showing the examination of title; and (iii) provide to such owner or owners a copy of all recorded instruments within the 60-year title history of such property, including all deeds of trust, releases, liens, deeds, or other instruments identified in the title report.

The passed version of this bill is a significant improvement for condemnors over the prior version of the code section, and a huge improvement over initial versions of this bill, which contained language that would have made the condemnation process even more unnecessarily expensive and burdensome. The new language removes the onerous burden and a lot of uncertainty involved in providing copies under the prior language. (Under the prior language, in at least one instance, a certificate of take was invalidated because the landowner’s counsel alleged that all documents were not provided, but could not identify any what documents were not provided.) With this new language, condemnor’s counsel know they only have to provide copies of the documents identified in the title report. The new language also appears to remove the burden of reporting on and providing copies of released liens.

However, the new language may add some additional burden to the title report. The old version, depending on how you read it, either had no requirements for the  paper report, or only required it to show ownership and cover 60 years.  The new words “and shall be documented in a report showing all matters that affect the current ownership, existing liens, encumbrances, and other matters affecting title as of the date of the title report” arguably only show what should be being included in a title report anyway. However, when writing a title report for non-eminent domain matters a significant amount of discretion is vested in the professional writing the report about what is reported. It remains to be seen if there is any litigation on these new words in the statute, but for the moment discretion would seem to be the better part of valor in title reports. If there is a choice to be made as to whether something is relevant to include in a report the language “other matters affecting title as of the date of the title repot” would seem to militate towards inclusion.

As noted, the changes above will go into effect July 1, 2025. However, this same code section, 25.1-204(D), was also modified by a seperate bill from the General Assembly this year, SB1158, which was sent back with a recommendation from the governor to change the enactment date to January 1, 2026. Currently, 25.1-204(D) only applies to acquiring fee simple interests in property, but not to easement acquisitions, even permanent one. In 2026, that will change and 25.1-204(D) will apply to acquiring any “permanent” interest in property. This new change will add the burden of providing copies of the report and supporting documents to permanent-easement-only acquisitions, which those sort of acquisitions had avoided since 2022.

What other improvements, if any, would you like to see in Virginia’s condemnation code? 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.