Full question:
Can your state department of transportation take the 20' right of way from the homeowner and widen the road without compensation?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Pennsylvania
Answer:
Eminent domain is the government's right to acquire private property for public use. The governmental entity may be a federal, state, county or city government, school district, hospital district or other agencies. A public entity, rather than a private party, may pursue eminent domain, and it must be for a public, rather than a private use. The taking of property may be with or without the permission of the owner. The Fifth Amendment to the Constitution provides that "private property [may not] be taken for public use without just compensation." The Fourteenth Amendment added the requirement of just compensation to state and local government takings. The eminent domain process usually involves passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. The owner who believes that just compensation is not being offered for the taking of their property may bring suit against the governmental agency. However, by depositing the amount of the offer in a trust account, the government becomes owner while a trial is pending. Some of the public uses supporting eminent domain include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings. Not all property can be appropriated or condemned for any purpose. Many states prohibit the exercise of eminent domain for property currently being used for such purposes as cemeteries, gardens and orchards, or factories. A landowner cannot convert the use of property to one of these uses in order to avoid condemnation, once proceedings have begun (notice of intent).
A "dedication" of land is a similar form of appropriation of private land (or an easement therein) for public use, but is effected voluntarily by the landowner, rather than through an adverse process of condemnation. A dedication may be express or implied through the landowner's conduct and the facts and circumstances related to the property. Notwithstanding, a dedication also may arise following an adverse (to the interests and/or use of the landowner) and exclusive use by members of the public under a claim of right. Such claim, by an adverse public user, is similar to a common law "adverse possession" claim between private parties, and is predicated upon the knowledge, actual or imputed, and acquiescence of the owner. Many states provide for both common-law and statutory dedications.
It is often the case that a landowner is not completely deprived of his property, but instead suffers a restriction or impairment of his or her right to use it. For example (and as is frequently the case), a government may need to run a utility through private property, or need to alter a shoreline such that the property is no longer on the waterfront. The property may need to be flooded to create a dam, or a building on the property may need to be relocated to make access to another point. In such cases, a partial taking may be effected, and the landowner is entitled to proportional compensation. Still another form of taking may occur when there is no actual property being taken from a person. Instead, governmental activity on one property may so severely deplete the value of adjacent or neighboring property so as to constitute a "constructive taking," often referred to as inverse or reverse condemnation. Fumes, noises, vibrations, changes in flow of ground water, or toxic pollutants are some of the more common interferences that may constitute constructive takings. Property owners may be entitled to compensation from the governmental entity. It is the legislature that has the power to determine the necessity of taking property for public use, as well as the amount of property to be taken. Most takings must comport with legislative language that mandates under what circumstances such an action is justified or necessary. A formal court action objecting on grounds of taking property not strictly needed for public use, or for taking more property than needed for public use is generally referred to as an action for "excess condemnation."
Whether a proffered compensation is just or not is a judicial question. Generally, an appropriate measure is the fair market value of the property at the time of the taking, plus any subsequent accrued interest. An objecting claimant will not succeed in arguing speculative value, or the fact that the property could be used for a special purpose which would tend to enhance its value. Instead, an objective assessment of the property in its present state is the correct measure, although consideration may include assessment of market value at its best and most profitable use. Notwithstanding, the compensation must be fair to both the property owner and the public. This assessment involves consideration of such factors as the cost of reproducing the property, its present market value, and the resulting damage or decrease in value to any remaining/residual property of the owner. It also may include consideration of the price originally paid for the property, and any buildings, crops, timber, or minerals located on the property. Additional compensation may be added for any delay in payment, as interest is recoverable when payment is not made at the time of the taking.
An aggrieved party who objects to a government taking must have an opportunity to receive fair notice (a reasonable time to obtain legal advice and prepare a formal objection). Additionally, there must be opportunity for a fair hearing before the award (of compensation) becomes final. The hearing provides a forum to adjudicate whether or not there had been an actual taking (in the question of less than total deprivation of interest); whether the taking was for a public use; and/or whether just compensation had been made. nitially, an objecting landowner may request either or both injunctive and monetary relief. However, if the government's action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if the objection was not well-grounded or appears to have been motivated by excessive pecuniary interest. n cases of partial takings or excessive takings, adjudication includes a determination of the percentage interest in a property which is adversely affected, and monetary award is prorated accordingly. Likewise, if the complaint is for devalued property which is not directly taken, but is adversely affected because of governmental activity or use on nearby property, adjudication includes a determination as to whether other factors have devalued the property and the monetary difference between the devalued property and its fair market value without the alleged adverse effect.
Compensation is required, effective from the date of the alleged taking. Payments not made at that time accrue interest, to which the landowner is entitled. Occasionally, subsequent actions or objections are filed months or years after the initial determination. This is especially true in the case of partial takings, e.g., easements. Over time, a government entity may engage in additional activity that exceeds in scope of the initial taking. If this causes further decrease in residual use or enjoyment still vested in the original property owner, both injunctive and monetary relief may be available.
The following are Pennsylvania statutes:
26 Pa.C.S.A. § 302. Declaration of taking
(a) Condemnation and passage of title. —
(1) Condemnation under the power of condemnation given by
law to a condemnor shall be effected only by the filing in
court of a declaration of taking with the security required
under section 303(a) (relating to security required).
(2) The title which the condemnor acquires in the property
condemned shall pass to the condemnor on the date of the
filing, and the condemnor shall be entitled to possession
under section 307 (relating to possession, right of entry
and payment of compensation).
(b) Contents. — The declaration of taking shall be in
writing and executed by the condemnor and shall be captioned
as a proceeding in REM and contain the following:
(1) The name and address of the condemnor.
(2) A specific reference to the statute and section under
which the condemnation is authorized.
(3) A specific reference to the action, whether by
ordinance, resolution or otherwise, by which the declaration
of taking was authorized, including the date when the action
was taken and the place where the record may be examined.
(4) A brief description of the purpose of the condemnation.
(5) A description of the property condemned, sufficient for
identification, specifying the municipal corporation and the
county or counties where the property taken is located, a
reference to the place of recording in the office of the
recorder of deeds of plans showing the property condemned or
a statement that plans showing the property condemned are on
the same day being lodged for record or filed in the office
of the recorder of deeds in the county in accordance with
section 304 (relating to recording notice of condemnation).
(6) A statement of the nature of the title acquired, if any.
(7) A statement specifying where a plan showing the
condemned property may be inspected in the county in which
the property taken is located.
(8) A statement of how just compensation has been made or
secured.
(c) More than one property included in declaration. —
The condemnor may include in one declaration of taking any
or all of the properties specified in the action by which
the declaration of taking was authorized.
(d) Fee. — The prothonotary shall charge one fee for
filing each declaration of taking, which shall be the same
regardless of the number of properties or condemnees
included.
(e) Filing. — The condemnor shall file within one
year of the action authorizing the declaration of taking a
declaration of taking covering all properties included in
the authorization not otherwise acquired by the condemnor
within this time.
26 Pa.C.S.A. § 305. Notice to condemnee
(a) Written notice. — Within 30 days after the
filing of the declaration of taking, the condemnor shall
give written notice of the filing to the condemnee, to any
mortgagee of record and to any lienholder of record.
(b) Service. —
(1) The notice shall be served, within or without this
Commonwealth, by any competent adult in the same manner as
in a civil action or by registered mail to the last known
address of the person being served.
(2) If service cannot be made in the manner set forth under
paragraph (1), then service shall be made by posting a copy
of the notice upon the most public part of the property and
by publication of a copy of the notice, omitting the plot
plan required by subsection (c)(9), one time each in one
newspaper of general circulation and the legal journal, if
any, published in the county.
(c) Contents. — The notice to be given the condemnee
shall state:
(1) The caption of the case.
(2) The date of filing of the declaration of taking and the
court term and number.
(3) The name of the condemnee to whom it is directed.
(4) The name and address of the condemnor.
(5) A specific reference to the statute and section under
which the condemnation action is authorized.
(6) A specific reference to the action, whether by
ordinance, resolution or otherwise, by which the declaration
of taking was authorized, including the date when the action
was taken and the place where the record may be examined.
(7) A brief description of the purpose of the condemnation.
(8) A statement that the condemnee's property has been
condemned and a reasonable identification of the property.
(9) In the case of a partial taking, a plot plan showing the
condemnee's entire property and the area taken.
(10) A statement of the nature of the title acquired.
(11) A statement specifying where a plan showing the
condemned property may be inspected in the county in which
the property taken is located.
(12) A statement of how just compensation has been made or
secured.
(13) A statement that, if the condemnee wishes to challenge
the power or the right of the condemnor to appropriate the
condemned property, the sufficiency of the security, the
procedure followed by the condemnor or the declaration of
taking, the condemnee must file preliminary objections
within 30 days after being served with notice of
condemnation.
(d) Compliance. — Service of a copy of the
declaration of taking, together with the information and
notice required by subsection (c)(2), (8), (9) and (13),
shall constitute compliance with the notice requirements of
this section.
(e) Proof of service. — The condemnor shall file
proof of service of the notice.
26 Pa.C.S.A. § 306. Preliminary objections
(a) Filing and exclusive method of challenging
certain matters. —
(1) Within 30 days after being served with notice of
condemnation, the condemnee may file preliminary objections
to the declaration of taking.
(2) The court upon cause shown may extend the time for
filing preliminary objections.
(3) Preliminary objections shall be limited to and shall be
the exclusive method of challenging:
(i) The power or right of the condemnor to appropriate the
condemned property unless it has been previously
adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
(b) Waiver. — Failure to raise by preliminary
objections the issues listed in subsection (a) shall
constitute a waiver. Issues of compensation may not be
raised by preliminary objections.
(c) Grounds to be stated. — Preliminary objections
shall state specifically the grounds relied on.
(d) When raised. — All preliminary objections shall
be raised at one time and in one pleading. They may be
inconsistent.
(e) Service. — The condemnee shall serve a copy of
the preliminary objections on the condemnor within 72 hours
after filing them.
(f) Disposition. —
(1) The court shall determine promptly all preliminary
objections and make preliminary and final orders and decrees
as justice shall require, including the revesting of title.
(2) If an issue of fact is raised, the court shall take
evidence by depositions or otherwise.
(3) The court may allow amendment or direct the filing of a
more specific declaration of taking.
(g) Costs and expenses. —
(1) If preliminary objections which have the effect of
terminating the condemnation are sustained, the condemnor
shall reimburse the condemnee for reasonable appraisal,
attorney and engineering fees and other costs and expenses
actually incurred because of the condemnation proceedings.
(2) The court shall assess costs and expenses under this
subsection.
26 Pa.C.S.A. § 307. Possession, right of entry and
payment of compensation
(a) Possession or right of entry of condemnor. —
(1)
(i) The condemnor, after the expiration of the time for
filing preliminary objections by the condemnee to the
declaration of taking, shall be entitled to possession or
right of entry upon payment of or a written offer to pay to
the condemnee the amount of just compensation as estimated
by the condemnor.
(ii) The condemnor shall be entitled to possession or right
of entry upon an easement without the payment of or offer to
pay the estimated just compensation if the condemnor has the
right to assess the property for benefits.
(iii) If a condemnee or any other person then refuses to
deliver possession or permit right of entry, the
prothonotary upon praecipe of the condemnor shall issue a
rule, returnable in five days after service upon the
condemnee or the other person, to show cause why a writ of
possession should not issue.
(iv) The court, unless preliminary objections warranting
delay are pending, may issue a writ of possession
conditioned except as provided in this subsection upon
payment to the condemnee or into court of the estimated just
compensation and on any other terms as the court may direct.
(2) A court may issue a writ of possession to a condemnor
prior to the disposition of preliminary objections.
(i) If it is finally determined that a condemnation is
invalid in a case in which preliminary objections challenge
the validity of a right-of-way or easement for occupation by
a utility, the affected owners may recover damages for
injuries sustained by taking possession under this
paragraph and are entitled to appropriate equitable relief.
(ii) If it is finally determined that any other condemnation
is invalid after the granting of possession under this
paragraph, the affected owners may recover costs and
expenses under section 306(g) (relating to preliminary
objections) and are entitled to disposition under
section 306(f).
(b) Tender of possession or right of entry by
condemnee. —
(1) If within 60 days from the filing of the declaration of
taking the condemnor has not paid just compensation as
provided in subsection (a), the condemnee may tender
possession or right of entry in writing, and the condemnor
shall then make payment of the just compensation due the
condemnee as estimated by the condemnor.
(2) If the condemnor fails to make the payment, the court,
upon petition of the condemnee, may compel the condemnor to
file a declaration of estimated just compensation or, if the
condemnor fails or refuses to file the declaration, may at
the cost of the condemnor appoint an impartial expert
appraiser to estimate just compensation.
(3) The court may, after hearing, enter judgment for the
amount of the estimated just compensation.
(c) Compensation without prejudice. —
(1) The compensation paid under subsections (a) and (b)
shall be without prejudice to the rights of either the
condemnor or the condemnee to proceed to a final
determination of the just compensation, and any payments
made shall be considered only as payments pro tanto of the
just compensation as finally determined.
(2) Following the rendition of the verdict, the court shall
mold the verdict to deduct the estimated just compensation
previously paid by the condemnor.
.(3) In no event shall the condemnee be compelled to pay back
to the condemnor the compensation paid under subsection (a)
or (b), even if the amount of just compensation as finally
determined is less than the compensation paid
26 Pa.C.S.A. § 701. Just compensation; other damages
A condemnee shall be entitled to just compensation for the
taking, injury or destraction of the condemnee's property,
determined as set forth in this chapter. Other damages shall
also be paid or awarded as provided in this title.
26 Pa.C.S.A. § 702. Measure of damages
(a) Just compensation. — Just compensation shall
consist of the difference between the fair market value of
the condemnee's entire property interest immediately before
the condemnation and as unaffected by the condemnation and
the fair market value of the property interest remaining
immediately after the condemnation and as affected by the
condemnation.
(b) Urban development or redevelopment condemnation. —
In the case of the condemnation of property in connection
with any urban development or redevelopment project, which
property is damaged by subsidence due to failure of surface
support resulting from the existence of mine tunnels or
passageways under the property or by reason of fires
occurring in mine tunnels or passageways or of burning coal
refuse banks, the damage resulting from the subsidence or
underground fires or burning coal refuse banks shall be
excluded in determining the fair market value of the
condemnee's entire property interest immediately before the
condemnation.
(c) Value of property damaged by natural disaster. —
(1) In the case of the condemnation of property in
connection with any program or project which property is
damaged by any natural disaster, the damage resulting from
the natural disaster shall be excluded in determining fair
market value of the condemnee's entire property interest
immediately before the condemnation.
(2) This subsection applies only where the damage resulting
from the natural disaster has occurred within five years
prior to the initiation of negotiations for or notice of
intent to acquire or order to vacate the property and during
the ownership of the property by the condemnee. The damage
to be excluded shall include only actual physical damage to
the property for which the condemnee has not received any
compensation or reimbursement.
26 Pa.C.S.A. § 703. Fair market value
Fair market value shall be the price which would be agreed
to by a willing and informed seller and buyer, taking into
consideration but not limited to the following factors:
(1) The present use of the property and its value for that
use.
(2) The highest and best reasonably available use of the
property and its value for that use.
(3) The machinery, equipment and fixtures forming part of
the real estate taken.
(4) Other factors as to which evidence may be offered as
provided by Chapter 11 (relating to evidence).
26 Pa.C.S.A. § 706. Effect of condemnation use on
after value
(a) General rule. — In determining the fair
market value of the remaining property after a partial
taking, consideration shall be given to the use to which the
property condemned is to be put and the damages or benefits
specially affecting the remaining property due to its
proximity to the improvement for which the property was
taken.
(b) Future damages and general benefits. — Future
damages and general benefits which will affect the entire
community beyond the properties directly abutting the
property taken shall not be considered in arriving at the
after value.
damages, except in cases where the condemnor is authorized
under existing law to make special assessments for benefits.
(d) Partial taking. — A partial taking shall not
extinguish a nonconforming use unless all or a substantial
portion of the improvements on the property are within the
area of the property taken.
26 Pa.C.S.A. § 713. Delay compensation
(a) General rule. — Compensation for delay in
payment shall be paid at an annual rate equal to the prime
rate as listed in the first edition of the Wall Street
Journal published in the year, plus 1%, not compounded,
from:
(1) the date of relinquishment of possession of the
condemned property by the condemnee; or
(2) if possession is not required to effectuate
condemnation, the date of condemnation.
(b) Exclusion. —
(1) No compensation for delay shall be payable with respect
to funds paid on account or by deposit in court after the
date of the payment or deposit.
(2) During the period the condemnee remains in possession
after the condemnation:
(i) the condemnee shall not be entitled to compensation for
delay in payment; and
(ii) the condemnor shall not be entitled to rent or other
charges for use and occupancy of the condemned property by
the condemnee.
(c) Award or judgment. — Compensation for delay shall
not be included by the viewers or the court or jury on
appeal as part of the award or verdict but shall, at the
time of payment of the award or judgment, be calculated
under subsection (a) and added to the award or judgment.
There shall be no further or additional payment of interest
on the award or verdict.
26 Pa.C.S.A. § 716. Attempted avoidance of monetary
just compensation
Where a condemnor attempts to avoid the payment of monetary
just compensation to which the condemnee otherwise would be
entitled by use of a substitute for monetary compensation and
the condemnee incurs expenses, including appraisal, attorney
and engineering fees, in securing an adjudication that the
substitute is not adequate, the condemnee shall be reimbursed
by the condemnor for all these expenses incurred.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
