12.4 PROCEDURE
12.401 In General.
Title 25.1 of the Virginia Code is the basic source of the law regarding a condemnor's use of the power of eminent domain to take private property for a public use. The primary exception to universal application of Title 25.1 is the Virginia Department of Transportation (VDOT). Although VDOT follows condemnation procedures in Chapter 2 of Title 25.1, 7870 special condemnation procedures govern VDOT's condemnations for highways. 7871 These highway condemnation procedures primarily address condemnation procedures other than those governing the just compensation trial. 7872
VDOT has procedures for entering onto someone's land and obtaining defeasible title to that land for the construction of highways. This taking occurs before a just compensation trial. Under certain circumstances, other condemnors have similar "quick-take" procedures whereby they can obtain possession and occupation of land for public improvement before a just compensation trial. 7873 To gain entry and occupation of land before paying the amount of just compensation that a judge or jury determines to be fair, the condemnor must either deposit into court an amount equal to the amount that a bona fide appraisal sets or otherwise certify that the funds are on deposit for the benefit of the property owner.
12.402 Right of Entry for Preliminary Site Inspections.
Section 25.1-203 of the Virginia Code provides the procedure for a condemnor to enter land to do preliminary site inspections to determine the suitability of the land for a public use. 7874 Section 25.1-203 gives property owners rights to have notice of precondemnation inspections 7875 and to recover compensation for any damages the inspection may cause. 7876
A condemnor may enter upon any property to inspect it without the written permission of the property owner if the petitioner has requested the owner's permission to enter and inspect the property as provided in section 25.1-203(B). 7877
The request must (i) be on the condemnor's official letterhead and signed by an authorized officer, agent, or employee; (ii) be sent to the owner by certified mail, return receipt requested, delivered by guaranteed overnight courier, or otherwise delivered to the owner in person with proof of delivery; and (iii) be made not less than 30 days before the first date of the proposed inspection; and (iv) notify the owner that if permission is withheld, the petitioner is permitted to enter the property on the date of the proposed inspection (mere citation of section 25.1-203 of the Virginia Code does not satisfy the requirements of clause (iv)). A request for permission to inspect is deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery. 7878
The request for permission must include (i) the specific date or dates that inspection is proposed; (ii) the name of the entity entering the property; (iii) the number of persons for whom permission is sought; (iv) the purpose for that entry; and (v) the testing, appraisals, or examinations to be performed and other actions to be taken. 7879 The condemnor may enter the property sooner than the 30 days indicated in the request only if the owner provides permission, in writing, to enter on an earlier date. 7880
Section 25.1-203 requires that the condemnor reimburse the property owner for any actual damages. If the property owner is forced to file an action to recover damages under the right of entry section of the eminent domain code, the owner may obtain an award for reasonable attorney fees, court costs, and expert fees. An action for damages does not preclude the owner from pursuing any additional remedies at law or equity. 7881
In Palmer v. Atlantic Coast Pipeline, LLC, 7882 the Virginia Supreme Court held that an interstate gas pipeline company organized under Delaware law was authorized under Virginia's public service corporation law 7883 to enter property to conduct surveys without the owner's permission in anticipation of condemnation proceedings. The utility had complied with the statutory requirements to seek the owner's permission and subsequently provide a notice of intent to enter. The court held that section 56-49.01 granted property access to any natural gas company doing business in the commonwealth. It also held that the 2012 amendment to Article I, Section 11 of the Virginia Constitution did not "abrogate the extensive common law privileges" of entities vested with eminent domain power to enter property. 7884
12.403 Disputes Regarding Entry.
Section 25.1-203 lists many predicate actions and facts that must occur before the condemning authority may use its power to enter land precondemnation without the owner's consent. If a dispute arises between the owner and the agent of the condemning authority over whether the condemning authority fulfilled the requirements of section 25.1-203 to obtain the power of involuntary entry, it may be an issue that the judge who will have jurisdiction over the condemnation will need to hear. Section 25.1-246 does empower law enforcement assistance for the condemnor to enforce its power to enter property before initiating condemnation.
12.404 Jurisdictional Prerequisites for Condemnation Petitions.
Section 25.1-204(D) of the Virginia Code requires a condemnor to examine the title to the property it seeks to acquire before it makes an offer to buy the property or uses quick-take procedures to acquire the defeasible title to the property. The condemnor must provide the title report to the owners.
If the condemnor determines that the value of the property it is to acquire exceeds $25,000, it must obtain an appraisal of the property. 7885 If the value of the property is between $10,000 and $25,000, the condemnor must disclose to the owner that the offer is based on assessment records or other objective evidence and not an appraisal and that the owner may request that an appraisal be prepared and used as the basis for establishing just compensation. 7886 Finally, before initiating condemnation, the condemnor must make a bona fide but ineffectual effort to purchase the property from the owner. 7887 The bona fide effort must include a written statement to the owner, on the condemning authority's letterhead and signed by an employee of the authority, that explains the factual basis for the offer. 7888 The written statement must include a description of the public use for which it is necessary to acquire the owner's property. 7889 If an appraisal was obtained pursuant to section 25.1-417, the written statement must include a complete copy of all appraisals of the property that were obtained before the condemnor made the offer or initiated any negotiations for the property. 7890 In no event shall the offer be less than the approved appraisal, if required, or the current assessed value, unless the property has changed in a material and substantial way since last assessed. 7891
12.405 Quick-Take. 7892
A. In General.
"Quick-take" occurs when the condemnor obtains the defeasible title to property by filing a certificate of take or a certificate of deposit describing the property it is condemning. It must also either deposit with the court, or give proof of funds on deposit elsewhere, an amount that the condemnor estimates to be the fair market value of the property taken and damage to the value of the residue. If an appraisal is required under section 25.1-417, the amount of deposit must be based on that bona fide appraisal. 7893
The authorized condemnor must give notice by certified or registered mail to the owner or tenant, if known, of the freehold in the property that it intends to file or record a certificate of take or deposit on the property. 7894 The statute requires that notice of the condemnor's intent be given between 30 and 45 days before the date on which the certificate will be filed or recorded, and a second notice that provides a copy of the certificate must also be given by certified or registered mail to the owner or tenant within four business days after the filing or recording of the certificate. 7895 The statute also requires that the notice state that upon recordation of the certificate, defeasible title to the property transfers to the condemnor and that the owner has the right to petition the court for distribution of the funds represented by the certificate, subject to any preexisting liens or other encumbrances upon the property. 7896 In the certificate, the condemnor must describe the property being taken or damaged and the owner or owners of the property, if known. 7897 The certificate is indexed in the clerk's office according to the names of the owners as well as of the authorized condemnor. 7898
B. Effect of Recordation of Certificate.
When a valid certificate of take or deposit is recorded, the interest of the owner in the property terminates and is vested in the condemnor. 7899 The owner's interest transfers to the funds on deposit or those funds represented by certificate of deposit. 7900 Liens by deed of trust, judgment, or otherwise transfer to the funds on deposit. 7901 It is important to note that the title of the condemnor is defeasible and does not become indefeasible until the condemnor and the owner agree on an amount of just compensation or a just compensation trial results in an award of just compensation. 7902 The amount of deposit and the fact that the owner has withdrawn the deposit (a "draw down") are inadmissible at the just compensation trial.
C. Draw Down of Funds on Deposit.
Persons with interest in the funds on deposit may petition the court to draw down the funds on deposit. The procedure for obtaining the funds includes a petition and affidavit for draw down. Often the owner can obtain an agreement from the condemnor to consent to distribution to the owner of the funds on deposit.
If there are liens on the condemned property by a deed of trust, judgment, or otherwise, the condemnor will likely require a...
