Chapter 1. General Provisions.

Sec.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 2, 8, 9, 15, 27, 63; 17 M.J. Streets and Highways, § 5.

§ 25.1-100. Definitions.

As used in this title, unless the context requires a different meaning:

"Appraisal" means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.

"Body determining just compensation" means a panel of commissioners empaneled pursuant to § 25.1-227.2 , jury selected pursuant to § 25.1-229 , or the court if neither a panel of commissioners nor a jury is appointed or empaneled.

"Court" means the court having jurisdiction as provided in § 25.1-201 .

"Date of valuation" means the time of the lawful taking by the petitioner, or the date of the filing of the petition pursuant to § 25.1-205 , whichever occurs first.

"Freeholder" means any person owning an interest in land in fee, including a person owning a condominium unit.

"Land" means real estate and all rights and appurtenances thereto, together with the structures and other improvements thereon, and any right, title, interest, estate or claim in or to real estate.

"Locality" or "local government" means a county, city, or town, as the context may require.

"Lost access" means a material impairment of direct access to property, a portion of which has been taken or damaged as set out in subsection B of § 25.1-230.1 . This definition of the term "lost access" shall not diminish any existing right or remedy, and shall not create any new right or remedy other than to allow the body determining just compensation to consider a change in access in awarding just compensation.

"Lost profits" means a loss of business profits, as defined in § 25.1-230.1 , that is suffered as a result of a taking of the property on which a business or farm operation is located, subject to adjustment using generally accepted accounting principles consistently applied, from a business or farm operation for a period not to exceed three years from the later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken. The person claiming lost profits is entitled to compensation whether part of the property or the entire parcel of property is taken. In order to qualify for an award of lost profits, one of the following conditions shall be met: (a) the business is owned by the owner of the property taken, or by a tenant whose leasehold interest grants the tenant exclusive possession of substantially all the property taken, or (b) the farm operation is operated by the owner of the property taken, or by a tenant using for a farm operation the property taken, to the extent that the loss is determined and proven pursuant to subsection C of § 25.1-230.1 . This definition of the term "lost profits" shall not create any new right or remedy or diminish any existing right or remedy other than to allow the body determining just compensation to consider lost profits in awarding just compensation if a person asserts a right to lost profits in a claim for compensation.

"Owner" means any person who owns property, provided that the person's ownership of the property is of record in the land records of the clerk's office of the circuit court of the county or city where the property is located. The term "owner" shall not include trustees or beneficiaries under a deed of trust, any person with a security interest in the property, or any person with a judgment or lien against the property. This definition of the term "owner" shall not affect in any way the valuation of property.

"Person" means any individual; firm; cooperative; association; corporation; limited liability company; trust; business trust; syndicate; partnership; limited liability partnership; joint venture; receiver; trustee in bankruptcy or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise; club, society or other group or combination acting as a unit; the Commonwealth or any department, agency or instrumentality thereof; any city, county, town, or other political subdivision or any department, agency or instrumentality thereof; or any interstate body to which the Commonwealth is a party.

"Petitioner" or "condemnor" means any person who possesses the power to exercise the right of eminent domain and who seeks to exercise such power. The term "petitioner" or "condemnor" includes a state agency.

"Property" means land and personal property, and any right, title, interest, estate or claim in or to such property.

"State agency" means any (i) department, agency or instrumentality of the Commonwealth; (ii) public authority, municipal corporation, local governmental unit or political subdivision of the Commonwealth or any department, agency or instrumentality thereof; (iii) person who has the authority to acquire property by eminent domain under state law; or (iv) two or more of the aforementioned that carry out projects that cause persons to be displaced.

"State institution" means any (i) institution enumerated in § 23.1-1100 or (ii) state hospital or state training center operated by the Department of Behavioral Health and Developmental Services.

(1962, c. 426, § 25-46.3; 1991, c. 520; 2000, c. 1029; 2002, c. 878; 2003, c. 940; 2006, c. 586; 2009, cc. 813, 840; 2010, c. 835; 2011, cc. 117, 190; 2012, cc. 476, 507, 699, 719; 2015, c. 642; 2017, c. 314; 2018, c. 702.)

Transition provisions. - In June 2002, the Virginia Code Commission undertook the revision of Title 25, establishing procedures for exercising the power of eminent domain. Title 25 had not been revised since the adoption of the Code of Virginia in 1950. During the past 52 years, many changes have been made to the procedures applicable to the condemnation of property. The primary purpose of the Title 25 revision was to reorganize the laws in a logical manner and improve their structure and clarity, while seeking to remove or update archaic references and conform the provisions to current statutory drafting protocols, incorporating current practices, resolving confusion caused by conflicting provisions and conforming certain provisions to other statutes. The revision, as amended and adopted by the General Assembly, became Acts 2003, c. 940, effective July 1, 2003.

Title 25 was rewritten primarily as new Title 25.1, with certain sections relocated elsewhere. In addition, provisions in titles other than Title 25 that authorize entities to acquire property by condemnation were also amended.

Where appropriate, the historical citations to former sections of Title 25 have been added to corresponding new sections.

The case notes appearing under new sections were decided under corresponding former sections or prior law.

For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2003, c. 940, cl. 2, provides: "That whenever any of the conditions, requirements, provisions or contents of any section or chapter of Title 25 or any other title of the Code of Virginia as such titles existed prior to July 1, 2003, are transferred in the same or modified form to a new section or chapter of Title 25.1 or any other title of the Code and whenever any such former section or chapter is given a new number in Title 25.1 or any other title, all references to any such former section or chapter of Title 25 or other title appearing in this Code shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents or portions thereof."

Acts 2003, c. 940, cl. 3, provides: "That the regulations of any department or agency affected by the revision of Title 25 or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act."

Acts 2003, c. 940, cl. 4, provides: "That the provisions of § 30-152 of the Code of Virginia shall apply to the codification of Title 25.1 so as to give effect to other laws enacted by the 2003 Session of the General Assembly."

Acts 2003, c. 940, cl. 5, provides: "That the repeal of Title 25 shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued or accruing on or before such date, or any proceeding, prosecution, suit or action pending on that day."

Acts 2003, c. 940, cl. 6, provides: "That any notice given, recognizance taken, or process or writ issued before July 1, 2003, shall be valid although given, taken or to be returned to a day after such date, in like manner as if Title 25.1 had been effective before the same was given, taken or issued."

Acts 2003, c. 940, cl. 7, provides: "That if any clause, sentence, paragraph, subdivision or section of Title 25.1 shall be adjudged in any court of competent jurisdiction to be invalid, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision or section thereof directly involved in the controversy in which the judgment shall have been rendered, and to this end the provisions of Title 25.1 are declared severable."

Editor's note. - Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

Acts 2012, cc. 699 and 719, which added the definitions of "Lost access" and "Lost profits," in cl. 2 provide: "That this act shall become effective January 1, 2013, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2012 amending Section 11 of Article I of the Constitution of Virginia."

At the direction of the Virginia Code Commission, "23.1-1100" was substituted for "23-14" in the definition of "State institution" to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

Acts 2017, c. 314, cl. 2 provides: "That the provisions of this act shall be effective retroactively to October 1, 2016."

The 2006 amendments. - The 2006 amendment by c. 586, in the definition of "Body determining just compensation," deleted "panel of commissioners empanelled pursuant to § 25.1-227" preceding "jury selected" and substituted "a jury is not empanelled" for "neither a panel of commissioners nor a jury is appointed or empanelled."

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and rewrote the definition of "State institution."

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in the first definition, inserted "panel of commissioners empanelled pursuant to § 25.1-227.2 " and substituted "if neither a panel of commissioners nor a jury is appointed or empanelled" for "if a jury is not empanelled."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and added the definitions for "Appraisal" and "State agency," and in the definition for "Petitioner or condemnor," deleted "under this chapter" from the end of the first sentence, and substituted "includes a state agency" for "includes any person required to make an effort to purchase property as provided in § 25.1-204 " in the last sentence.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and deleted "for individuals with mental retardation" following "state training center" in the paragraph defining "State institution."

The 2012 amendments by cc. 699 and 719, contingently effective January 1, 2013, are identical, and added the definitions of "Lost access" and "Lost profits." See Editor's note for contingent effective date.

The 2015 amendments. - The 2015 amendment by c. 642, in the first sentence in the definition for "Lost profits," inserted "as defined in § 25.1-230.1 ," inserted the "(i)" designator preceding "three years," inserted "if less than the entire parcel . . . property is taken," and substituted the "(a)" and "(b)" designators for the "(i)" and "(ii)" designators; and in the second sentence, deleted "as an element of damage" preceding "in a claim for compensation."

The 2017 amendments. - The 2017 amendment by c. 314, effective retroactively to October 1, 2016, deleted "educational" preceding "institution" in clause (i) of the definition for "State institution."

The 2018 amendments. - The 2018 amendment by c. 702, in the definition for "Lost profits," rewrote and divided the first sentence into the first three sentences, which formerly read "'Lost profits' means a loss of business profits, as defined in § 25.1-230.1 , subject to adjustment using generally accepted accounting principles consistently applied, from a business or farm operation for a period not to exceed (i) three years from the date of valuation if less than the entire parcel of property is taken or (ii) one year from the date of valuation if the entire parcel of property is taken that is suffered as a result of a taking of the property on which the business or farm operation is located, provided (a) the business is owned by the owner of the property taken, or by a tenant whose leasehold interest grants the tenant exclusive possession of substantially all the property taken, or (b) the farm operation is operated by the owner of the property taken, or by a tenant using for a farm operation the property taken, to the extent that the loss is determined and proven pursuant to subsection C of § 25.1-230.1 ."

Law review. - For survey article on judicial decisions in real estate law from June 1, 2002 through June 1, 2003, see 38 U. Rich. L. Rev. 223 (2003).

For annual survey article, "Real Estate Law," see 41 U. Rich. L. Rev. 257 (2006).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Virginia Forms (Matthew Bender). No. 6-401 Petition for Condemnation of Permanent and Temporary Rights of Entry, et seq.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Whenever public use of property requires it, private rights of property must yield to this paramount right of sovereign power to take it for the public use. Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 (1925).

Jurisdiction wholly statutory. - In eminent domain proceedings the jurisdiction of courts is wholly statutory. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965).

Rules of construction of eminent domain statutes. - It is said that, in the construction of statutes conferring the power of eminent domain, every reasonable doubt is to be solved adversely to the right; that the affirmative must be shown, as silence is negation; and that unless both the spirit and letter of the statute clearly confer the power it cannot be exercised. Norfolk & W. Ry. v. Lynchburg Cotton Mills Co., 106 Va. 376 , 56 S.E. 146 (1907); Carson v. City of Richmond, 113 Va. 527 , 75 S.E. 119 (1912); School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919); City of Richmond v. Childrey, 127 Va. 261 , 103 S.E. 630 (1920).

Statutes conferring the power of eminent domain are strictly construed and the authority conferred in such statutes must be carefully observed. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

In eminent domain proceedings the statutes must be strictly construed and followed. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965).

Jurisdiction and procedure, as well as the scope of the inquiry, in condemnation cases are controlled by statute. Board of Supvrs. v. Board of County Supvrs., 206 Va. 730 , 146 S.E.2d 234 (1966).

State may delegate power. - The right to take private property for a public use is a very high prerogative right, but there is no doubt about the power of the State to exercise it, or to delegate it to subordinate agencies to be exercised in proper proceedings for the public good. School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919).

The right of eminent domain must be exercised in this State upon such terms, and in such manner, and for such public uses as the legislature may direct. Blondell v. Guntner, 118 Va. 11 , 86 S.E. 897 (1915).

Power must be clearly conferred. - The taking of private property is a matter of serious import, and is not to be permitted except where the right is plainly conferred and the manner of its exercise has been strictly followed. There must be no doubt or uncertainty about the existence of the power. If it is not plainly conferred, it does not exist. School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919).

Courts cannot curtail power delegated. - The right of eminent domain is in the legislature, which alone controls the measure of its bestowal, and while the courts may supervise its exercise, they cannot curtail its legitimate scope where the legislature has plainly delegated the power to a subordinate agency. Norfolk & W. Ry. v. Lynchburg Cotton Mills Co., 106 Va. 376 , 56 S.E. 146 (1907).

Restrictions upon power and construction. - The State may grant the power generally to condemn any property for a public use, or it may place such restrictions upon the power, the manner of its exercise, or the character of the property that may or may not be taken as it pleases. When such restrictions are imposed they must be obeyed. If the limitations or restrictions imposed involve public inconvenience, or retard the progress of public improvements, the remedy is an appeal to the legislature. They cannot be removed by judicial construction. The courts cannot enlarge a power which the legislature has restricted. School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919).

Diminution of property value for filing of condemnation proceeding and lis pendens not damage to property. - Without further interference with an owner's right to use and dispose of his land, the filing of condemnation proceedings and a lis pendens does not constitute a taking of the property requiring just compensation under the Virginia Constitution. Similarly, allegations of potential diminution in property value resulting from the institution of these proceedings does not constitute damage to the property envisioned by Va. Const., Art. I, § 11. Bartz v. Board of Supvrs., 237 Va. 669 , 379 S.E.2d 356 (1989).

Statute covers right to have damages ascertained when property not taken by proceedings. - When the eminent domain statute is read as a whole and given a reasonable construction, it is evident that it provides for the ascertainment of damages in condemnation proceedings instituted by corporations and cities where no part of the property is actually taken, but only damaged. Therefore a municipality has the right to have ascertained the consequential damages to the property of abutting owners, by reason of the change in grade of a street, no part of said property, nor interest or estate therein, being sought to be taken. Hannah v. City of Roanoke, 148 Va. 554 , 139 S.E. 303 (1927).

Parties in interest at valuation stage. - Former §§ 25-46.1 et seq. provided for a two-stage proceeding. In the first stage, the court determines the fair market value of the land taken and the damage, if any, to the remaining land. The only parties having an interest in the valuation stage were the condemning authority, the owner of the land and certain tenants who had an interest in the award. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

An easement of a right-of-way may be condemned. Swann v. Washington-Southern Ry., 108 Va. 282 , 61 S.E. 750 (1908).

Unlocated secondary easements may be acquired. - A power company sought to condemn easements across two tracts of land for the erection of transmission lines and unlocated rights of ingress and egress to the easements for purposes of construction and maintenance. Such secondary easements were held subject to acquisition by condemnation. The power company's attempt to acquire such unlocated secondary easements was not, as contended by the landowners, an arbitrary exercise of its power of eminent domain. Prompt repair of the lines might at any time be required in the public interest, and ready access could not be had to them over the roads bounding the tracts involved. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

Restrictive covenants applicable to a residential subdivision create an "interest or estate" in land, which a public utility may acquire by eminent domain, but subject to the protection of Va. Const., Art. I, § 11, such that it may not "be taken or damaged for public uses, without just compensation." Meagher v. Appalachian Elec. Power Co., 195 Va. 138 , 77 S.E.2d 461 (1953).

No material impairment of direct access to property. - In a case in which the city council adopted an ordinance closing the portion of a road that abutted the landowner's property to all non-emergency vehicular traffic, that exercise of police power by the city did not, as a matter of law, deprive the landowner of reasonable access because the landowner retained access to its property through a major public highway; and, although the landowner's lost access to the road, although qualifying as a direct loss of access, was not a material impairment of direct access to property. Thus, the closure did not constitute a taking that entitled the landowner to compensation. Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663 , 842 S.E.2d 413, 2020 Va. LEXIS 59 (May 28, 2020).

Facts establishing "railroad." - Where a company had operated as a common carrier of freight and passengers for 10 years, had engaged in no other business, had complied with the provisions of the Interstate Commerce Act, and had been recognized as a railroad by the State Corporation Commission and the Interstate Commerce Commission, it was a railroad vested with the powers of eminent domain. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

Applicability of nonsuit statute to condemnation proceedings. - An "action" and a "cause of action" are quite different: "action" is defined by § 8.01-2 , and "cause of action" is defined as a set of operative facts which, under the substantive law, may give rise to a right of action. Because of that difference, there are no express terms in the nonsuit statute making it specifically applicable to condemnation proceedings. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

The right to take a nonsuit on the eve of trial, notwithstanding a defendant's loss of time and expense incurred in preparation, and notwithstanding any disruption which may result to the court's docket, is a powerful tactical weapon in the hands of a plaintiff. The General Assembly has provided, in § 8.01-380 , several conditions to give balance to the exercise of that right. Nonsuit remains, however, distinctly a weapon in the arsenal of a plaintiff. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

Condemnor has no right to nonsuit after property has been acquired. - A condemnor has no right to a nonsuit or a voluntary dismissal of a condemnation proceeding, without the owners' consent, after any interest in, or possession of, the property has been acquired. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

Traditional burden-of-proof rules are inapplicable in condemnation cases. - The parties to a condemnation proceeding are not in the position of plaintiffs and defendants in traditional actions or suits. Traditional burden-of-proof rules are inapplicable to condemnation cases. The petitioner in a condemnation case is, therefore, not a traditional plaintiff. Although he has the statutory duty to institute the proceeding, he has no ultimate risk of nonpersuasion. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

After the condemnor has acquired title and instituted the proceeding for the ascertainment of just compensation, he is in the position of a defendant. The condemnor, therefore, is not entitled to nonsuit the proceeding over the owner's objection because of any traditional advantages inhering in the position of a plaintiff in an action at law. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

Admissibility of evidence in equitable distribution proceeding. - Former § 25-46.3 and § 33.1-124 [now § 33.2-1023 ] do not limit the admissibility of evidence in an equitable distribution matter. Virginia's equitable distribution scheme authorizes a trial court to consider all admissible evidence that is probative of value of the parties' assets. Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d 666 (1994).

CIRCUIT COURT OPINIONS

"Owner." - In a condemnation proceeding, for purposes of the diminution of market value of the land not taken or the damages thereto, the city's evidence sufficiently demonstrated that there was no difference between the value of the residue of the triplex parcel immediately before and immediately after the taking because defendant's rights to the gazebo and pier were in the nature of a license to use the public waterways adjacent to his property as that property was below the mean water mark, which was owned and regulated by the Commonwealth. City of Norfolk v. Hedgepeth, 96 Va. Cir. 199, 2017 Va. Cir. LEXIS 117 (Chesapeake July 27, 2017).

Inverse condemnation denied. - Property owner's petition, seeking an order requiring an earlier condemnation of the owner's property, was rejected where the city housing authority was acting within an approved resolution, under which the owner's property would be acquired within five years; otherwise, the orderly administration of the project could be thwarted by owners within the project area forcing condemnation proceedings on a timeline different from that contemplated by the project. BWT, L.L.C. v. Norfolk Redevelopment & Hous. Auth., 57 Va. Cir. 121, 2001 Va. Cir. LEXIS 424 (Norfolk 2001).

OPINIONS OF THE ATTORNEY GENERAL

"Lost access." - Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law. See opinion of Attorney General to Honorable J. Chapman Petersen, Member, Senate of Virginia, No. 13-099, 2014 Va. AG LEXIS 6 (1/10/14).

§ 25.1-101. Condemnation by state institutions.

  1. Any state institution may acquire by condemnation title to (i) land, (ii) any easement thereover or (iii) any sand, earth, gravel, water or other necessary material for the purpose of opening, constructing, repairing or maintaining a road or for any other authorized public undertaking; however, such acquisition by condemnation shall only be commenced if the terms of purchase cannot be agreed upon or the owner (a) is unknown, (b) cannot with reasonable diligence be found within this Commonwealth or (c) cannot negotiate an agreement or convey legal title to the property because the owner is a person under a disability.
  2. Condemnation proceedings authorized by subsection A shall be conducted under the provisions of Chapter 2 (§ 25.1-200 et seq.) of this title insofar as applicable. (Code 1950, § 25-232; 1964, c. 291, § 25-232.01; 1980, c. 559; 1986, c. 117; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counties, § 57; 7A M.J. Eminent Domain, §§ 8, 9; 17 M.J. Streets and Highways, § 23.

§ 25.1-102. Condemnation of property of corporations possessing power of eminent domain.

  1. Except as provided in §§ 15.2-1906 and 15.2-2146 , no (i) corporation or (ii) electric authority created under the provisions of Chapter 54 (§ 15.2-5400 et seq.) of Title 15.2 shall file a petition to take by condemnation proceedings any property belonging to any other corporation possessing the power of eminent domain, unless, after notice to all parties in interest and an opportunity for a hearing, the State Corporation Commission shall certify that a public necessity or that an essential public convenience shall so require, and shall give its permission thereto; and in no event shall one corporation take by condemnation proceedings any property owned by and essential to the purposes of another corporation possessing the power of eminent domain. Notwithstanding anything herein to the contrary, a locality exercising the powers granted by § 15.2-2109 or § 15.2-2115 shall be subject to the provisions of this section to the same extent as are corporations, unless otherwise provided in § 15.2-1906 or § 15.2-2146 .
  2. If the State Corporation Commission gives its permission to a condemnation, the Commission shall establish for use in any condemnation proceeding whether any payment for stranded investment is appropriate and, if so, the amount of such payment and any conditions thereof.
  3. Any condemnor that is authorized to use the procedure set out in Chapter 3 (§ 25.1-300 et seq.) of this title by a provision that incorporates such procedure by reference shall, in using such procedure, be subject to the provisions of this section to the same extent as are corporations, unless the provision specifically provides that this section shall not apply to such condemnor's use of such procedure. (Code 1919, § 3832; 1996, c. 619, § 25-233; 1999, cc. 484, 531; 2003, c. 940.)

Cross references. - As to acquisition of property and exercise of right of eminent domain for municipal or county airports, see § 5.1-34.

As to proceedings when one public service corporation desires to cross works of another, see § 56-17 et seq.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Michie's Jurisprudence. - For related discussion, see 4B M.J. Corporations, § 217; 7A M.J. Eminent Domain, §§ 13, 14, 27; 15 M.J. Public Service and State Corporation Commissions, § 30; 17 M.J. Streets and Highways, § 25.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Scope of section. - The right created by former similar section would not be extended by construction beyond the explicit requirements of the statute. Great Falls Power Co. v. Great Falls & O.D.R.R., 104 Va. 416 , 52 S.E. 172 (1905).

Construing together former similar section and §§ 56-17 through 56-22, it is seen that the section related to a condemnation proceeding under which, by force of the power of eminent domain, it was intended to condemn and take a fee simple interest in property belonging to another corporation, and not to the crossing of the tracks of one railroad company by another. Norfolk & W. Ry. v. Virginian Ry., 110 Va. 631 , 66 S.E. 863 (1910).

In proceedings before the State Corporation Commission on a petition by one railroad to prevent another from crossing at grade, there is no question of the exercise of the power of eminent domain. One railroad has the absolute power to cross another, and the crossing is a privilege granted and is not a taking of property within the meaning of the condemnation statutes. Hence, former similar section did not apply. Norfolk & W. Ry. v. Tidewater Ry., 11 Va. L. Reg. 518 (1905).

All of the provisions in former § 25-233 as traditionally applied by the Commission applied to the condemnation of electrical utility distribution facilities under § 56-265.4:2 by a city or town. Town of Blackstone v. Southside Elec. Coop., 256 Va. 527 , 506 S.E.2d 773 (1998).

A city cannot condemn the property of a public service corporation without complying with former similar section. The legislative history shows that the limitations imposed by former § 15.1-237 and the section applied to municipalities. Boulevard Bridge Corp. v. City of Richmond, 203 Va. 212 , 123 S.E.2d 636 (1962); City of Richmond v. Southern Ry., 203 Va. 220 , 123 S.E.2d 641 (1962).

Public necessity or essential public convenience is required. - The true construction of former similar section required that when one public service corporation proposed to condemn the property of another there should be some greater reason than the general policy of the State. Norfolk & W. Ry. v. Interstate R.R., 114 Va. 789 , 76 S.E. 940 (1913).

To justify condemnation under former similar section it had to not only appear that the land sought to be condemned was for a public use, but it had to affirmatively appear that a public necessity, or an essential public convenience, required that the land be taken, and that such land was not essential to the purposes of such other corporation. Great Falls Power Co. v. Great Falls & O.D.R.R., 104 Va. 416 , 52 S.E. 172 (1905).

What constitutes public necessity or essential public convenience. - Where the proposed condemnation would permit the bringing closer together of passenger stations that were a mile apart and would increase the competition of railroads by affording to large coal operators a new, better and enlarged market for their product, and where the owners of the land were only occupying about two-tenths of their holding and that proposed to be taken was not essential to their purpose, the evidence in the case showed "an essential public convenience," and the condemnation sought should be permitted. Norfolk & W. Ry. v. Interstate R.R., 114 Va. 789 , 76 S.E. 940 (1913).

Scenic advantages, however great, or however much they may increase the revenues of an electric railway company chartered to transport persons and property along its line, were not a public necessity, or an essential public convenience within the meaning of former similar section. Great Falls Power Co. v. Great Falls & O.D.R.R., 104 Va. 416 , 52 S.E. 172 (1905).

In a proceeding before the State Corporation Commission by a city for permission to condemn the property of a railroad company for a recreation park, the owners and lessors of the land sought to be condemned admitted that it was not essential to their purposes. The only question before the Commission, therefore, was whether a public necessity or an essential public convenience required the condemnation of the land. The city, after a careful survey of the situation, had declared that an essential public convenience or public necessity required that the property in question be taken. The Commission approved that conclusion, and the Supreme Court approved the action of the Commission. Page v. Commonwealth, 157 Va. 325 , 160 S.E. 33 (1931).

Acquisition and operation of franchisee's plant and property. - With the permission of the State Corporation Commission, a city or town may institute eminent domain proceedings to acquire and operate the plant and property owned by the franchisee. Potomac Edison Co. v. Town of Luray, 234 Va. 348 , 362 S.E.2d 678 (1987).

The State Highway and Transportation Department (now Department of Transportation) was not a corporation possessing the power of eminent domain within the meaning of former similar section. Tiller v. Norfolk & W. Ry., 201 Va. 222 , 110 S.E.2d 209 (1959).

Dismissal for failure to secure consent of State Corporation Commission. - The trial court dismissed the proceeding upon the ground that the petitioner had not applied for and secured from the State Corporation Commission a certificate of public necessity and essential public convenience, as required by law, and its judgment was affirmed on appeal. City of Hopewell v. Norfolk & W. Ry., 154 Va. 19 , 152 S.E. 537 (1930).

When failure to obtain consent must be alleged. - The failure of a railroad company to obtain the consent of the State Corporation Commission to condemn the lands of another railroad company, as required by former similar section, before entering thereon to make surveys preparatory to the institution of condemnation proceedings, could not be relied on in support of an injunction granted on other grounds, where no such failure was charged in the bill. South & W. Ry. v. Virginia & S.W. Ry., 104 Va. 323 , 51 S.E. 843 (1905).

Action of Corporation Commission as judicial in nature. - In the proceeding before the Commission under former similar section it is authorized to pass upon questions of "public necessity" and "essential public convenience" as well as whether the property was essential to corporation's purposes. Here the Commission acted in the nature of an umpire for the purpose of safeguarding the interests of all parties affected, including the public, and its action was judicial in nature. Hence it was appropriate, under the circumstances, to invoke the Commission's rule of practice pertaining to declaratory judgments. Boulevard Bridge Corp. v. City of Richmond, 203 Va. 212 , 123 S.E.2d 636 (1962).

Meaning of "parties in interest." - Primarily, "parties in interest," as used in former similar section, means the parties desiring to condemn, on the one hand, and the owner of the land, on the other. Page v. Commonwealth, 157 Va. 325 , 160 S.E. 33 (1931); Virginia Ass'n of Ins. Agents v. Commonwealth, 201 Va. 249 , 110 S.E.2d 223 (1959).

Parties before Commission not necessarily interested parties. - The State Corporation Commission is expressly authorized by the Constitution to exercise functions which are much broader in their general scope than those ordinarily coming under the judicial department, and in the proper performance of these duties admits and hears parties who, in the strict legal sense, are not interested in the subject matter. Permitting citizens, taxpayers and owners of property adjacent to the property sought to be condemned in a proceeding under former similar section to intervene did not affect their status as interested parties, nor did it necessarily follow that the Commission was of opinion that they were interested parties, in the legal sense. Page v. Commonwealth, 157 Va. 325 , 160 S.E. 33 (1931).

Commission's denial of approval supported by evidence. - Where the State Corporation Commission denied a city's request, made pursuant to former similar section, for approval of extension at grade of a certain street across the tracks of defendant railway, finding no public necessity or essential public convenience to support such request, the evidence was ample to support the Commission's findings. City of Bristol v. Virginia & S.W. Ry., 200 Va. 617 , 107 S.E.2d 473 (1959).

§ 25.1-103. Condemnation of lands of state institutions.

Without the consent of the General Assembly, no condemnor shall be authorized to condemn or acquire any lands belonging to, attached to the site, or used for the purposes of any state institution.

(Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.)

CASE NOTES

Allocation of the use of the state's real property among the various entities of the state is a legislative matter invested in the General Assembly. Continental Cas. Co. v. Town of Blacksburg, 846 F. Supp. 486 (W.D. Va. 1994) (decided under prior law).

§ 25.1-104. Condemnation of lands of private educational institutions for highway purposes.

No lands of any private, nonprofit institution of higher education in the Commonwealth approved to confer degrees pursuant to Article 3 (§ 23.1-213 et seq.) of Chapter 2 of Title 23.1 that, at the time proceedings are instituted, (i) are located within 500 feet of any building erected and used for school purposes or (ii) surround the school buildings and are used as a campus, park, or athletic ground or field, shall be subject to condemnation for the purposes of public highways.

(Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.)

Editor's note. - At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-213 et seq.) of Chapter 2 of Title 23.1" was substituted for "Chapter 21.1 ( § 23-276.1 et seq.) of Title 23" to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

CASE NOTES

Matter of substance. - Former similar section dealt with a matter of substance, not with a matter of procedure. Marymount College v. Harris, 205 Va. 712 , 139 S.E.2d 43 (1964) (decided under prior law).

The phrase "for the purposes of public highways" is all-inclusive. By its very language, it relates to all public highways, whether those sought to be established or improved by the State Highway Commissioner (now Commonwealth Transportation Commissioner), or by a county or a municipality. Marymount College v. Harris, 205 Va. 712 , 139 S.E.2d 43 (1964) (decided under prior law).

§ 25.1-105. Condemnation of cemeteries.

Nothing in this title shall be construed to authorize the condemnation of property of any cemetery or burial ground, or any part thereof. The authority to condemn any cemetery or burial ground shall be specifically as provided by law.

(Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.)

OPINIONS OF THE ATTORNEY GENERAL

An airport authority is authorized to exercise its power of eminent domain to condemn trees in a private cemetery to provide unobstructed airspace for purposes of air safety. See opinion of Attorney General to Lucy E. Phillips, Esq., Washington County Attorney, 09-086, 2009 Va. AG LEXIS 53 (12/11/09).

§ 25.1-106. Condemnation of lands within agricultural and forestal districts.

No property that is within an agricultural and forestal district as provided by Chapter 43 (§ 15.2-4300 et seq.) of Title 15.2 shall be condemned except in accordance with §§ 15.2-4312 and 15.2-4313 .

(1977, c. 681, § 25-46.2:2; 2003, c. 940.)

Cross references. - As to applicability of this section to Housing Authorities Law, see § 36-9.1 .

§ 25.1-107. Condemnation of lands within adopted conservation or redevelopment plans.

  1. After the adoption of a conservation or redevelopment plan pursuant to Article 7 (§ 36-48 et seq.) of Chapter 1 of Title 36, should any property located within the area of the conservation or redevelopment plan be downzoned without the expressed consent of the property owner and should the locality initiate condemnation proceedings against that owner after any such downzoning, the date of valuation shall be the date of adoption of the conservation or redevelopment plan. However, if the owner of the property on the date of the downzoning no longer owns the property on the date condemnation proceedings are initiated, then the date of valuation shall be the date of the filing of the petition for a condemnation or a certificate pursuant to Chapter 3 of this title, as the case may be.
  2. If property located within a conservation or redevelopment plan adopted pursuant to Article 7 (§ 36-48 et seq.) of Chapter 1 of Title 36 was downzoned without the expressed consent of the property owner within a period of five years prior to the adoption of the conservation or redevelopment plan and if such downzoning was not part of a comprehensive rezoning of the locality, then, if the locality should initiate condemnation proceedings within five years after the adoption of the conservation or redevelopment plan against the same owner who owned the property at the time of the downzoning, the date of valuation shall be the day before the date the property was downzoned. However, if the owner of the property on the date condemnation proceedings are initiated is not the same owner on the date the property is downzoned, then the date of valuation shall be the date of the filing of a petition for condemnation or a certificate pursuant to Chapter 3 (§ 25.1-300 et seq.) of this title, as the case may be.
  3. Where the date of valuation in condemnation proceedings governed by this section predates the date of any downzoning action, the locality may introduce into evidence before the body determining just compensation the estimated difference between the amount of real estate taxes that the owner would have paid had the downzoning not occurred and the amount of real estate taxes assessed against the property since the date of the downzoning and the body determining just compensation may offset the award by that amount.

    (2004, c. 540.)

Law review. - For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 42.

§ 25.1-108. Offer to sell to former owner.

  1. If a condemnor has acquired a fee simple interest in property by exercise of its power of eminent domain and subsequently declares that the property is surplus, the condemnor shall offer, within 30 days following such determination, to sell such property to the former owner or his heirs or other successors or assigns. If (i) the work or improvements described in any written statement required by law or in the petition for condemnation made pursuant to § 25.1-206 have not been let to contract or construction commenced within a period of 20 years from the date that the fee simple interest in the property vested in the condemnor, and the property is not being used for other public uses that are within the limitations set forth in § 1-219.1 or (ii) at any time the property is no longer used or needed for the public use for which the property was taken as may be described in any written statement required by law or in the petition for condemnation or for another specific public use that is within the limitations set forth in § 1-219.1 , the condemnor shall declare its fee simple interest in the property to be surplus and offer to sell the property to the former owner or his heirs or other successors or assigns. Additionally, if the conditions described in clause (i) or (ii) occur, the former property owner or his heirs or other successors or assigns may make a written demand that the condemnor (a) declare its fee simple interest in the property to be surplus and (b) offer to sell the property to the former owner or his heirs or other successors or assigns. Any contractual provision or agreement by the former owner waiving the right to receive an offer to sell from the condemnor is void and unenforceable. The offer to sell shall be made in writing by the condemnor at the price paid by the condemnor to the former owner plus interest at the annual rate of six percent, provided that the condemnor may increase the price by the fair market value of the condemnor's improvements, determined at the time the offer to sell is made. In no case shall the price established by the condemnor exceed the fair market value of the property at the time the offer to sell is made. The offer to sell shall comply with the requirements of subsection B. If the former owner or his heirs or other successors or assigns do not accept in writing an offer to sell that complies with the requirements of this section within six months after the offer to sell has been made as provided in subsection B, the former owner or his heirs or other successors or assigns shall have no further right to purchase the property pursuant to this section. An offer to sell that satisfies the requirements of this subsection and subsection B shall be deemed a valid offer to sell under this section.
  2. The condemnor shall (i) send the offer to sell to the former owner by certified mail, return receipt requested, to (a) the last known address of the former owner and (b) the address of the former owner as it appears in the tax records of the treasurer for the locality in which the property is located and (ii) publish the offer to sell in a newspaper having general circulation in the locality in which the property is located. The offer to sell shall be published once a week for two successive weeks, shall identify the former owner from whom the condemnor acquired the property, shall briefly describe the property and the date title vested in the condemnor, shall state the offer is made pursuant to this section, and shall state that the offer is open to any heirs, successors, or assigns of the former owner, who shall be named in the offer as parties unknown.
  3. This section shall apply only to a fee simple interest in real property acquired by a condemnor in the exercise of its power of eminent domain. This section shall not apply to property acquired by the Commissioner of Highways pursuant to Title 33.2. Further, this section shall not apply to property acquired by a locality for transportation projects, including for bond-funded transportation projects or for future transportation improvements, regardless of whether such projects are undertaken in conjunction with the Commonwealth Transportation Board, provided that as to any such acquisitions by a locality the provisions of § 33.2-1005 shall apply mutatis mutandis to the property and any disposition thereof. Also, this section shall not apply to property that is acquired by the owner of a railroad for actual operating purposes if the property is unsuitable for independent development. (2005, c. 2; 2006, c. 246; 2007, cc. 882, 901, 926; 2011, cc. 117, 190.)

Editor's note. - Acts 2005, c. 2, cl. 2 provides: "That the provisions of this act shall apply only with respect to property acquired by a condemnor on or after July 1, 2005."

Acts 2007, cc. 882, 901, and 926, cl. 3 provides: "That, until July 1, 2010, the provisions of this act shall not affect the ability of a redevelopment and housing authority organized pursuant to Title 36 of the Code of Virginia to acquire property pursuant to any redevelopment or conservation plan adopted prior to January 1, 2007. However, the provisions of this act shall be applicable to all redevelopment and conservation plans adopted after January 1, 2007."

Acts 2007, cc. 882, 901, and 926, cl. 4, as amended by Acts 2010, c. 203, provides: "Nothing contained in this act shall prohibit the Norfolk Redevelopment and Housing Authority or the City of Norfolk to acquire property located at Map Number 24488500 and Map Number 41138940, both located in the City of Norfolk, through the use of eminent domain for the location of a recreational facility open to the public to be owned or operated by a not-for-profit entity, provided such acquisitions are instituted prior to January 1, 2011."

Acts 2011, cc. 36 and 152, cl. 3 provides: "That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title 'Commonwealth Transportation Commissioner' to 'Commissioner of Highways."' "Commissioner of Highways" was substituted for "Commonwealth Transportation Commissioner" in this section.

Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2006 amendments. - The 2006 amendment by c. 246, in the first paragraph of subsection A, deleted "unless the former owner had waived his right to the offer of repurchase" at the end of the first sentence and added the second sentence.

The 2007 amendments. - The 2007 amendments by cc. 882, 901 and 926 are identical, and, in subsection A, in the first paragraph, deleted "within 15 years of being vested with the title to such property" following "property is surplus" and inserted the second and third sentences and deleted the second paragraph, banning requirements for a condemnor to offer to sell property the condemnor has acquired through eminent domain to a former owner 15 years after vestment with the title to the property.

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and rewrote the section.

Law review. - For annual survey article, "Real Estate Law," see 41 U. Rich. L. Rev. 257 (2006).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 103.

§ 25.1-109. Condemnation of lands for compensatory mitigation of wetlands.

When authorization is required by federal or state law for any project affecting wetlands and the authorization is conditioned upon compensatory mitigation for adverse impacts to wetlands, no condemnor shall acquire through exercise of the power of eminent domain any property to satisfy such condition unless: (i) the property sought to be acquired is located within the same locality as the project affecting wetlands, or (ii) the governing body of the locality where the property sought to be acquired consents to its acquisition for such purpose. This section shall not apply to property acquired by the Commissioner of Highways pursuant to Title 33.2.

(2005, c. 311.)

The number of this section was assigned by the Virginia Code Commission, the number in the 2005 act having been § 25.1-108 .

Editor's note. - Acts 2005, c. 311, cl. 2 provides: "That the provisions of this act shall not apply to any locality or political subdivision seeking to provide compensatory wetlands mitigation for impacts related to a project for which state or federal permits have been received prior to the effective date of this act."

A reference in this section was updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Acts 2011, cc. 36 and 152, cl. 3 provides: "That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title 'Commonwealth Transportation Commissioner' to 'Commissioner of Highways."' "Commissioner of Highways" was substituted for "Commonwealth Transportation Commissioner" in this section.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 15.

CIRCUIT COURT OPINIONS

Jurisdiction. - Circuit court found that it did have subject matter jurisdiction over a case because the Virginia Department of Transportation was utilizing its eminent domain authority under § 25.1-109 , in tandem with Va. Const. art. 1, § 11 and § 33.2-1001 , to condemn property for the purpose of wetlands mitigation. Comm'r of Highway v. Lockhart,, 2020 Va. Cir. LEXIS 156 (Buchanan County Aug. 17, 2020).

Chapter 2. Condemnation Procedures.

General Provisions.

Condemnation Proceedings.

Right of Entry After Filing Petition.

Determination of Just Compensation by Commissioners.

Determination of Just Compensation by Jurors.

Provisions Applicable to Determinations of Just Compensation.

Judgment and Post-Judgment Procedure.

Dismissal of Proceedings.

Article 1. General Provisions.

§ 25.1-200. Chapter controls condemnation proceedings.

Unless otherwise specifically provided by law, all proceedings for the condemnation of property under the power of eminent domain shall be brought and conducted according to the provisions of this chapter.

(1962, c. 426, § 25-46.2; 2003, c. 940.)

Cross references. - As to constitutional limitation on eminent domain, see Va. Const., Art. I, § 11.

As to limitations on eminent domain, see § 1-219.1 .

As to the power of the Virginia Small Business Financing Authority to condemn property in furtherance of its purposes, see § 2.2-2286 .

As to power of eminent domain by: Metropolitan Washington Airports Authority, see § 5.1-160 ; Department of Conservation and Recreation, see § 10.1-201 ; localities, see § 15.2-1901.1 et seq.; corporation against corporation, see § 25.1-102 ; Commissioner of Highways, see § 33.2-1000 et seq.; housing authorities, see § 36-27 ; public service corporations generally, see § 56-49; railroads, see § 56-347; telegraph and telephone companies, see § 56-464; other utility companies, § 56-260.

As to the notice required when Commissioner of Highways exercises the power of eminent domain, see § 33.2-1013 .

Editor's note. - Acts 1962, c. 426, cl. 4, which enacted former §§ 25-46.1 et seq., provided that "nothing contained in this chapter shall be construed to repeal, amend, impair or affect any provision of any charter of any city or town."

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 6 Pleading. § 6.02 Complaints. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Nichols on Eminent Domain (Matthew Bender).

Virginia Forms (Matthew Bender). No. 6-401 Petition for Condemnation of Permanent and Temporary Rights of Entry; No. 6-401.1 Petition for Condemnation - Another Form; No. 6-404 Petition for Condemnation by County for Roadway; No. 6-410 Affidavit for Notice by Publication.

Michie's Jurisprudence. - For related discussion, see 17 M.J. Streets and Highways, §§ 6, 8, 23.

CIRCUIT COURT OPINIONS

Inverse condemnation denied. - Property owner's petition, seeking an order requiring an earlier condemnation of the owner's property, was rejected where the city housing authority was acting within an approved resolution, under which the owner's property would be acquired within five years; otherwise, the orderly administration of the project could be thwarted by owners within the project area forcing condemnation proceedings on a timeline different from that contemplated by the project. BWT, L.L.C. v. Norfolk Redevelopment & Hous. Auth., 57 Va. Cir. 121, 2001 Va. Cir. LEXIS 424 (Norfolk 2001) (decided under prior law).

§ 25.1-201. Jurisdiction of condemnation proceedings.

Jurisdiction of proceedings to condemn property under this chapter shall be in the circuit court of the county or city wherein such property, or the greater portion thereof proposed to be condemned is situated, unless otherwise specifically provided by law.

(Code 1919, § 4361; Code 1950, § 25-2; 1962, c. 426, § 25-46.4; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 65, 72.

CASE NOTES

Equity is not the proper forum for condemnation proceedings. Board of Supvrs. v. Board of County Supvrs., 206 Va. 730 , 146 S.E.2d 234 (1966) (decided under prior law).

Condemnation proceedings should be maintained on the common-law side of the court. Board of Supvrs. v. Board of County Supvrs., 206 Va. 730 , 146 S.E.2d 234 (1966) (decided under prior law).

Applied in Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

CIRCUIT COURT OPINIONS

Jurisdiction over easement issue. - Court had jurisdiction over the controversy notwithstanding the overbreadth of the language of the requested easement, given that both parties suggested that the proposed easement could be easily modified and respondent offered no legal authority to support its claim that an overbroad request, which might be curtailed by the final order, deprived the court of jurisdiction to adjudicate the controversy. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

§ 25.1-202. Nature of proceedings.

Condemnation proceedings shall be conducted as actions at law.

(1972, c. 533, § 25-46.4:1; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

§ 25.1-203. Authority of certain condemnors to inspect property; reimbursement for damages; notice prior to entry.

  1. In connection with any project wherein the power of eminent domain may be exercised, any locality or any petitioner exercising the procedure set forth in Chapter 3 (§ 25.1-300 et seq.), acting through its duly authorized officers, agents or employees, may enter upon any property without the written permission of its owner if the petitioner has requested the owner's permission to inspect the property as provided in subsection B.
    1. A request for permission to inspect shall (i) be on the petitioner's official letterhead and signed by an authorized officer, agent, or employee of such entity; (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; (iii) be made not less than 30 days prior to the first date of the proposed inspection; and (iv) notify the owner that if permission is withheld, the petitioner shall be permitted to enter the property on the date of the proposed inspection. A mere citation of this section number of the Code of Virginia shall not satisfy the requirements of clause (iv). A request for permission to inspect shall be deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery. B. 1.  A request for permission to inspect shall (i) be on the petitioner's official letterhead and signed by an authorized officer, agent, or employee of such entity; (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; (iii) be made not less than 30 days prior to the first date of the proposed inspection; and (iv) notify the owner that if permission is withheld, the petitioner shall be permitted to enter the property on the date of the proposed inspection. A mere citation of this section number of the Code of Virginia shall not satisfy the requirements of clause (iv). A request for permission to inspect shall be deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery.
    2. A request for permission to inspect shall include (i) the specific date or dates such inspection is proposed to be made; (ii) the name of the entity entering the property; (iii) the number of persons for whom permission is sought; (iv) the purpose for which entry is made; and (v) the testing, appraisals, or examinations to be performed and other actions to be taken.
    3. If a request for permission is provided in accordance with subdivision 1, a petitioner 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.
  2. Any entry authorized by this section (i) shall be for the purpose of making surveys, tests, appraisals or examinations thereof in order to determine the suitability of such property for the project, and (ii) shall not be deemed a trespass.
  3. The petitioner shall make reimbursement for any actual damages resulting from entry upon the property. In any action filed under this section, the court may award the owner his reasonable (i) attorney fees, (ii) court costs, and (iii) fees for up to three experts or as many experts as are called by the petitioner, whichever is greater, who testified at trial if the court finds that the petitioner damaged the owner's property. A proceeding under this subsection shall not preclude the owner from pursuing any additional remedies available at law or equity.
  4. The requirements of this section shall not apply to the practice of land surveying, as defined in § 54.1-400 , when such surveying is not involved in any eminent domain or any proposed eminent domain matter. (1968, c. 415, § 25-232.1; 1970, c. 182; 2003, c. 940; 2005, c. 877; 2019, c. 788; 2021, Sp. Sess. I, c. 60.)

Cross references. - As to condemnation of land for school purposes, see § 22.1-127.

Editor's note. - Acts 2019, c. 788, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019."

The 2005 amendments. - The 2005 amendment by c. 877 redesignated former subsection B as subdivision B 1 and rewrote subdivision B 1; added subdivision B 2 and subsection F; inserted "tests" in clause (i) in subsection D; and rewrote subsections C and E.

The 2019 amendments. - The 2019 amendment by c. 788, in subdivision B 2, inserted clause (iii) and redesignated former clauses (iii) and (iv) as (iv) and (v), respectively; in subsection C, inserted the first and fourth sentences; rewrote subsection E, which read: "The petitioner shall make reimbursement for any actual damages resulting from entry upon the property. In any action filed under this section, the court may award the owner his reasonable (i) attorneys' fees, (ii) court costs, and (iii) fees for no more than three expert witnesses testifying at trial if: (a) the court finds that the petitioner maliciously, willfully, or recklessly damaged the owner's property; or (b) the court awards the owner actual damages in an amount 30 percent or more greater than the petitioner's final written offer made no later than 30 days after the filing of an answer in circuit court or the return date in general district court. A proceeding under this subsection shall not preclude the owner from pursuing any additional remedies available at law or equity"; and made stylistic changes. For applicability, see Editor's note.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 60, effective July 1, 2021, in subsection A, deleted clauses (ii) and (iii), which read "(ii) the owner's written permission is not received prior to the date entry is proposed, and (iii) the petitioner has given the owner notice of intent to enter as provided in subsection C" and made related changes; in subdivision B 1, inserted clauses (i) and (iv) and redesignated former clauses (i) and (ii) as clauses (ii) and (iii), and in clause (iii), substituted "30 days prior" for "15 days prior" in the first sentence, and inserted the second sentence; added subdivision B 3; and deleted former subsection C, relating to the notice of intent to enter; and redesignated remaining subsections accordingly.

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

For student note, "This Land is Your Land? Survey Delegation Laws as a Compensable Taking," see 25 Wash. & Lee J. Civil Rts. & Soc. Just. 545 (2019).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counties, § 36.

§ 25.1-204. Effort to purchase required; prerequisite to effort to purchase or filing certificate.

  1. A condemnor shall not institute proceedings to condemn property until a bona fide but ineffectual effort to purchase from the owner the property sought to be condemned has been made. However, such effort shall not be required if the consent cannot be obtained because one or more of the owners (i) is a person under a disability or is otherwise unable to convey legal title to such property, (ii) is unknown, or (iii) cannot with reasonable diligence be found within this Commonwealth.
  2. Such bona fide effort shall include delivery of, or attempt to deliver, a written offer to acquire accompanied by a written statement to the owner that explains the factual basis for the condemnor's offer. The written statement shall include a description of the public use for which it is necessary to acquire the owner's property and shall contain a certification that the acquisition has been reviewed by the condemnor for purposes of complying with § 1-219.1 . The written offer shall be made upon the state agency's letterhead and shall be signed by an authorized employee of such state agency.
  3. If the condemnor obtains an appraisal of the property pursuant to the provisions of § 25.1-417 , such written statement shall include a complete copy of the appraisal of the property upon which such offer is based. If the condemnor obtains more than one appraisal, such written statement shall include a copy of all appraisals obtained prior to making an offer to acquire or initiating negotiations for the real property.
  4. 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 and (ii) provide to such owner or owners a copy of the report of status of title.
  5. A state agency's acquisition of real property in connection with any programs or projects pursuant to this title or Title 33.2 shall be conducted in accordance with the following provisions:
    1. Before making an offer to acquire or initiating any related negotiations for real property, the state agency shall establish an amount which it believes to be just compensation therefor and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the state agency's approved appraisal of the fair market value of such property, if such an appraisal is required, or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, shall be disregarded in determining the compensation for the property. The state agency concerned shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation, and, if an appraisal is required or obtained, such written statement and summary shall include a complete copy of all appraisals of the real property to be acquired that the state agency obtained prior to making an offer to acquire or initiating negotiations for the real property. The state agency shall provide its written statement of the amount it established as just compensation on its letterhead, which shall be signed by an authorized employee of such state agency. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
    2. No owner shall be required to surrender possession of real property before the state agency pays the agreed purchase price, or deposits with the state court in accordance with applicable law, for the benefit of the owner, (i) an amount not less than the state agency's approved appraisal of the fair market value of such property, if such an appraisal is required, or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater, or (ii) the amount of the award of compensation in the condemnation proceeding for such property.
  6. Nothing in this section shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

    (Code 1919, § 4363; Code 1950, § 25-7; 1962, c. 426, § 25-46.5; 1998, c. 556; 2000, c. 1029; 2003, cc. 627, 940; 2005, c. 878; 2011, cc. 117, 190; 2013, c. 764; 2020, c. 793.)

Editor's note. - Acts 2003, c. 627 amended § 25-46.5, from which this section is derived. Pursuant to § 30-152, Acts 2003, c. 627 has been given effect in this section as set out above. The 2003 amendments by c. 627, in subsection D, inserted the clause (i) designation, and inserted "and (ii) provide to such owner or owners a copy of the report of status of title" at the end.

Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2005 amendments. - The 2005 amendment by c. 878 added subsection E.

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and in subsection B, inserted "offer to acquire accompanied by a written" in the first sentence and added the last sentence; added the last sentence in subsection C; and in subdivision E 1, in the first sentence, inserted "making an offer to acquire or" and "any related," in the second and fourth sentences, inserted "state," and in the fourth sentence, deleted "together with a copy of the agency's approved appraisal of the fair market value of such property upon which the agency has based the amount offered for the property, if such an appraisal is required" from the end and added the language beginning "and, if an appraisal is required or obtained"; and made minor stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 764 added "or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater" at the end of the second sentence of subdivision E 1 and in clause (i) of subdivision E 2; and added subsection F.

The 2020 amendments. - The 2020 amendment by c. 793, in subsection B, substituted "for which it is necessary to acquire the owner's property" for "that provides the basis for the condemnor's acquisition" and added the last sentence; and in subdivision E 1, inserted the penultimate sentence.

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Virginia Forms (Matthew Bender). No. 6-401. Petition for Condemnation of Permanent and Temporary Rights of Entry; No. 6-401.1 Petition for Condemnation - Another Form; No. 6-404 Petition for Condemnation by County for Roadway.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 64; 17 M.J. Streets and Highways, §§ 3, 5, 19.

Editor's note. - Most of the cases cited below were decided under prior law.

CASE NOTES

In general. - Former similar section did not contemplate that proceedings under it would be instituted except in those cases in which the land wanted could not be acquired by private agreement with those who had an interest in it. Core v. City of Norfolk, 99 Va. 190 , 37 S.E. 845 (1901); Chesapeake & W.R.R. v. Washington, C. & St. L. Ry., 99 Va. 715 , 40 S.E. 20 (1901).

Section mandatory. - Former similar section was mandatory. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

And compliance is a jurisdictional condition precedent to condemnation. State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55 (1983).

The effort of a railroad to acquire property for its uses by contract is by this section made a condition precedent to the exercise of the power of eminent domain. Tidewater Ry. v. Hurt, 109 Va. 204 , 63 S.E. 421 (1909).

Without first determining the question of a bona fide offer having been made by the condemnor, the judge was without jurisdiction to entertain the petition of the condemnor, and hence without jurisdiction to appoint commissioners. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

This section is jurisdictional. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Petroleum company did not breach a franchise agreement under 15 U.S.C.S. § 2802 by selling franchise property to a potential condemnor before condemnation proceedings had been filed because the company sold the property under the compulsion of an impending condemnation action. Further, the making of a bona fide offer to purchase the property was a jurisdictional condition precedent to a condemnation action under § 25.1-204 . Bajwa v. Sunoco, Inc., 329 F. Supp. 2d 726, 2004 U.S. Dist. LEXIS 15428 (E.D. Va. 2004).

It is a substantive rule of law, giving to landowners in cases in which the statute is applicable, a very valuable and substantial right. United States v. Crary, 1 F. Supp. 406 (W.D. Va. 1932).

Compliance by the federal government. - Former similar section was not a procedural statute and there was no federal statute which required that such section be observed as a preliminary to the institution of a condemnation suit by the United States. United States v. Crary, 1 F. Supp. 406 (W.D. Va. 1932).

Former similar section did not expressly or by necessary implication refer to the United States. Moreover, it would be improper to impute to the legislature an intent to impose unbecoming conditions on the exercise by the United States of its power to acquire land by condemnation. United States v. Crary, 1 F. Supp. 406 (W.D. Va. 1932).

Another reason for a belief that this section does not apply to condemnations by the federal government is that, even if the statute exhibited an intent that it should apply, such an intent would be beyond the powers of the state legislature. United States v. Crary, 1 F. Supp. 406 (W.D. Va. 1932).

Former statute superseded by city charter. - Former § 25-7 was superseded, as to the City of Richmond, by the city's charter, authorizing the city to acquire property by condemnation, to the extent that the charter conflicted with the general law. Fonticello Mineral Springs Co. v. City of Richmond, 147 Va. 355 , 137 S.E. 458 (1927); City of Richmond v. Dervishian, 190 Va. 398 , 57 S.E.2d 120 (1950).

The only offer recognized within the statutory framework of condemnation is that which occurs at the inception of the process. At that time, the Commonwealth is required to have made a bona fide but ineffectual effort to purchase the property before initiating further action to condemn it. Commonwealth Transp. Comm'r v. Klotz, Inc., 245 Va. 101 , 425 S.E.2d 508 (1993).

Condemnor's offer to purchase must be bona fide, i.e., made in good faith. Norfolk Redevelopment & Hous. Auth. v. Baylor, 214 Va. 1 , 197 S.E.2d 335 (1973).

A landowner should not be put to the trouble and possible expense of counsel fees upon the mere whim or caprice of the condemnor, when a bona fide effort to purchase his land would in all probability terminate the transaction. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

And compliance with this requirement must be proved when denied. - Where the landowner in eminent domain proceedings, by his answer, denied that an ineffectual attempt to purchase the land had been made, the judge should have heard the evidence upon this question before appointing commissioners, and in the event the company failed to affirmatively show that it had made a bona fide effort to agree upon terms of purchase with the owner, he should have dismissed the proceedings. Charles v. Big Sandy & C.R.R., 142 Va. 512 , 129 S.E. 384 (1925).

Mere preliminary correspondence is insufficient. - A mere preliminary correspondence to ascertain the price of the land, before the city has determined to condemn the land, was not a sufficient compliance with this section. Core v. City of Norfolk, 99 Va. 190 , 37 S.E. 845 (1901).

Attempt is sufficient if negotiations proceed far enough to indicate impossibility of agreement. Tiller v. Norfolk & W. Ry., 201 Va. 222 , 110 S.E.2d 209 (1959).

A bona fide offer to purchase becomes "ineffectual," within the meaning of the section, when negotiations proceed far enough to indicate an impossibility of agreement. State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55 (1983).

If impossibility of agreement becomes apparent immediately, condemnor is not obliged further to pursue futile efforts. Norfolk Redevelopment & Hous. Auth. v. Baylor, 214 Va. 1 , 197 S.E.2d 335 (1973).

Condemnor's offer need only be figure likely to preserve framework of negotiations. - Condemnor's offer need not be the full appraised value. It need not be the fair market price, for that is to be determined in the condemnation proceeding if the parties fail to agree. It need not be the figure likely to be accepted. It need be only a figure likely to preserve the framework for further negotiations. Norfolk Redevelopment & Hous. Auth. v. Baylor, 214 Va. 1 , 197 S.E.2d 335 (1973); State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55 (1983).

If the rule were otherwise, the condemnor would begin with no bargaining leverage, and the public policy of avoiding the expense and delay of condemnation litigation by consensual bargain and sale would be forever frustrated. Norfolk Redevelopment & Hous. Auth. v. Baylor, 214 Va. 1 , 197 S.E.2d 335 (1973).

Mere incorrectness in the quantum of the offer, without a showing of bad faith, is insufficient to make out a violation of the mandate of the section. State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55 (1983).

Where it was undisputed that an erroneous offer arose from a mathematical error in computing and expressing, in terms of hundredths of an acre, an area which was at all times correctly shown on the commissioner's plat, and the property owner was never misled as to the location and boundaries of the taking, and the commissioner's agent went over the plans with him and walked over the area with him, the offer was bona fide, even though erroneous. State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55 (1983).

Where a city made a landowner an offer for property at a figure set by two competent appraisers, which offer was rejected, the city complied with the statutory requirement that a bona fide offer be made prior to condemnation. Stanpark Realty Corp. v. City of Norfolk, 199 Va. 716 , 101 S.E.2d 527 (1958).

Offer held satisfactory. - Where, although condemnor's offer was less than landowner said the property had been appraised for loan purposes, it was based upon a value fixed by a professional appraisal, such an offer was not frivolous and fully satisfied the requirement of the section. Norfolk Redevelopment & Hous. Auth. v. Baylor, 214 Va. 1 , 197 S.E.2d 335 (1973).

Filing of condemnation certificate did not constitute renewal of earlier offer. The filing of the condemnation certificate did not constitute a renewal of the Commissioner's earlier offer; it was an exercise of the Commissioner's legislative authority, as conferred by statute. Thus, common law contract principles were inapplicable. Commonwealth Transp. Comm'r v. Klotz, Inc., 245 Va. 101 , 425 S.E.2d 508 (1993).

General Assembly did not intend that condemnor must negotiate with lienholders or that they would have standing to contest value. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Lienholder is not an "owner" within the contemplation of the statute. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Holder of deed of trust not an "owner." - In Fonticello Mineral Springs Co. v. City of Richmond, 147 Va. 355 , 137 S.E. 458 (1927), it was held that the holder of a deed of trust was not an "owner" of the property for purposes of the statute, and, despite the subsequent revision of the statute, there has been no indication that the General Assembly has seen fit to change this definition. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Procedural requirements met. - Trial court erred in holding that the first appraisal of the real property at issue was an inadmissible offer to settle, that title vested in the Commonwealth, and that the landowners were to repay an alleged overpayment because the appraisal was given to the landowners before any offer to purchase was made and/or settlement negotiations were initiated, the landowners could introduce evidence of the higher, precondemnation valuation to rebut a second lower valuation, evidence of any amount deposited with the trial court with a Certificate of Take was inadmissible, and there was no statutory bar to the admission of the presettlement appraisal. Ramsey v. Comm'r of Hwys, 289 Va. 490 , 770 S.E.2d 487, 2015 Va. LEXIS 43 (2015).

Waiver. - Existence of a bona fide offer is a procedural requirement, which is deemed waived if an objection is not timely raised. Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

CIRCUIT COURT OPINIONS

Condemnor's offer to purchase must be bona fide. - Accepting the facts asserted by the real property owners as true for the purpose of ruling on a housing authority's motion to strike the owners' objections and affirmative defenses in a condemnation proceeding, the circuit court could not hold that the housing authority made a bona fide offer to the owner, because the appraisal upon which the bona fide offer was based allegedly did not appraise the entire property sought and the appraisal allegedly was not conducted using accepted appraisal methodology. Norfolk Redevelopment & Hous. Auth. v. Cent. Radio, Inc., 82 Va. Cir. 240, 2011 Va. Cir. LEXIS 85 (Norfolk Feb. 17, 2011).

Amendment of subsection E of § 25.1-204 does not supplant the supreme court's interpretation that a bona fide offer is one that is made in good faith because subsection E has simply clarified a condemning authority's obligations when making an offer to purchase property; the code still requires a condemning authority to make a good faith offer to purchase property before initiating condemnation proceedings, but now, however, the condemning authority must also ensure that the good faith offer is at least equal to the fair market value as appraised. Norfolk Redevelopment & Hous. Auth. v. Norva Props., L.C., 84 Va. Cir. 45, 2011 Va. Cir. LEXIS 269 (Norfolk Dec. 7, 2011).

Bona fide offer made. - Motion by the Commonwealth Transportation Commissioner to amend a certificate of condemnation to properly identify the correct parcel was granted pursuant to § 33.1-125 [now 33.2-1024 ], as the Commissioner had made a bona fide offer to purchase the property under § 25.1-204 , and defendants knew which parcel the Commissioner was interested in, and thus defendants were not prejudiced by the clerical error. Commonwealth Transp. Comm'r v. Holly Tree Props., Inc., 71 Va. Cir. 353, 2006 Va. Cir. LEXIS 136 (Fairfax County 2006).

Housing authority made a bona fide offer for an owner's property because it complied with the requirements of § 25.1-204 ; the authority, through its professional appraiser, made a bona fide offer to purchase the property, and the appraisal of the property was to be the basis of the authority's offer. Norfolk Redevelopment & Hous. Auth. v. Norva Props., L.C., 84 Va. Cir. 45, 2011 Va. Cir. LEXIS 269 (Norfolk Dec. 7, 2011).

Natural gas company made a bona fide effort to purchase properties because the company offered what it considered to be fair market values; the offers were rejected by the property owners, which resulted in the company filing a petition condemnation and application for entry. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Mere incorrectness in the quantum of the offer without bad faith. - In a condemnation proceeding, although the city's initial offer erroneously offset the purported enhancement of vacating the old water main easement against the value of the new easement, and the offer did not contain any amount for damages, the city used an erroneous measure of just compensation when it made a deduction from the offer for the claimed enhancement; however, despite the error, the offer was made in good faith as there had been no evidence that the city acted with any ill intent; and mere incorrectness in the quantum of the offer, without a showing of bad faith, was insufficient to make out a violation of the statutory mandate that the city make a bona fide offer before initiating a condemnation proceeding. City of Norfolk v. Hedgepeth, 96 Va. Cir. 199, 2017 Va. Cir. LEXIS 117 (Chesapeake July 27, 2017).

Compliance is a jurisdictional condition precedent. - Housing authority, for the purpose of ruling on the circuit court's jurisdiction, made a bona fide offer to a real property owner, because the housing authority complied with the requirements of subsection A of § 25.1-204 , and any dispute regarding the manner by which the property was appraised was to be determined at the just compensation phase of the proceeding. However, accepting the facts asserted by the owners as true for the purpose of ruling on housing authority's motion to strike the owners' objections and affirmative defenses, the court could not hold that the housing authority made a bona fide offer to the owner, because the appraisal upon which the bona fide offer was based allegedly did not appraise the entire property sought and the appraisal allegedly was not conducted using accepted appraisal methodology. Norfolk Redevelopment & Hous. Auth. v. Cent. Radio, Inc., 82 Va. Cir. 240, 2011 Va. Cir. LEXIS 85 (Norfolk Feb. 17, 2011).

Appraisal covered all property sought to be condemned. - Appraisal covered all of the property sought to be condemned because the property owner intended to take all the plastic manufacturing equipment with it; the owner's officer testified that the owner would be relocating the equipment to any future business location, and his testimony was an unequivocal expression of the owner's intent to take all the equipment located within the property, whether affixed to the property or not, to a new location. Norfolk Redevelopment & Hous. Auth. v. Norva Props., L.C., 84 Va. Cir. 45, 2011 Va. Cir. LEXIS 269 (Norfolk Dec. 7, 2011).

Procedural requirements met. - Because a county properly alleged that the owners' property was appraised prior to the initiation of negotiations, because the owners were given the opportunity to accompany the appraiser during the inspection, and because the appraisal complied with subsection C of § 25.1-204 and subdivision A 2 of § 25.1-417 , the owners' demurrers to the condemnation of their property were overruled. Board v. Royal, 75 Va. Cir. 460, 2007 Va. Cir. LEXIS 305 (Campbell County 2007).

Alleged party-opponent admission. - Document that contained the alleged party-opponent admission described itself as an offer to purchase the needed rights of way, and because that document was an offer from petitioner to purchase respondents' property, the information sought was not admissible, and petitioner's motion in limine was granted as to that issue. Comm'r of Highways v. Carey, 90 Va. Cir. 58, 2015 Va. Cir. LEXIS 17 (Hanover County Feb. 20, 2015).

Article 2. Condemnation Proceedings.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 64, 66, 67, 69, 70, 97; 15 M.J. Railroads, §§ 21, 30; 17 M.J. Streets and Highways, §§ 7, 12, 19.

§ 25.1-205. Commencement of proceedings.

  1. Proceedings for condemnation shall be initiated by filing a petition complying with the requirements of § 25.1-206 in the court.
  2. A public utility shall not be required, as a prerequisite to its filing of its petition for the condemnation of property necessary for ordinary extensions or improvements of its facilities within the territory in which it is lawfully authorized to operate, for use in public utility service, to obtain a certificate from the State Corporation Commission under the Utility Facilities Act, Chapter 10.1 (§ 56-265.1 et seq.) of Title 56. This subsection shall not be construed to exempt a public utility from the requirements of § 25.1-102 when the condemnation would take property of another corporation possessing the power of eminent domain. (Code 1919, §§ 4364, 4365; Code 1950, §§ 25-8, 25-9, 25-10; 1962, c. 426, §§ 25-46.7, 25-46.9; 1975, c. 189; 1980, c. 441; 1981, c. 316; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

CASE NOTES

Institution of proceedings by one condemnor precludes right of another to condemn same property. - Where two condemnors would otherwise have equal right to condemn the same property, the right of the one who first institutes condemnation proceedings is superior; that is, the institution of condemnation proceedings by one condemnor precludes the right of the other to condemn the same property. Board of Supvrs. v. Board of County Supvrs., 206 Va. 730 , 146 S.E.2d 234 (1966) (decided under prior law).

Description of adjoining parcel of land. - A power company sought to condemn easements across two tracts of land for the erection of transmission lines. Though one of the landowners showed that he owned another parcel which adjoined that over which the power company sought its easements, it could not be said as a matter of law that this other parcel was likely to be damaged by construction of the transmission lines. Therefore, the court erred in requiring the company, at the landowner's request, to include a description of it in its petition. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954) (decided under prior law).

§ 25.1-205.1. Mandatory dispute resolution orientation session.

Following the filing of a petition initiating a condemnation proceeding, the court shall refer the matter to a dispute resolution orientation as provided in § 8.01-576.5 . The court shall set a date for the parties to return to court in accordance with its regular docket and procedure, irrespective of the referral to an orientation session. The parties shall notify the court, in writing, if the dispute is resolved prior to the return date.

Upon such referral, the parties shall attend one orientation session. Further participation in a dispute resolution proceeding shall be by consent of all parties. Attorneys for any party may be present during a dispute resolution proceeding.

(2006, c. 415.)

Editor's note. - Acts 2006, c. 415, cl. 2, provides: "That the Office of the Executive Secretary of the Supreme Court shall promulgate such procedures and prepare materials to implement the provisions of this section."

Law review. - For annual survey article, "Real Estate Law," see 41 U. Rich. L. Rev. 257 (2006).

§ 25.1-206. Petition for condemnation.

The petition for condemnation shall contain:

  1. A caption wherein the person vested by law with power to exercise the right of eminent domain shall be the petitioner, and the named defendants shall be at least one of the owners of some part of or an interest in the property to be taken or damaged, and the property to be taken designated generally by kind, quantity and location.
  2. Short and plain statements of the following:
    1. The authority for the taking;
    2. The necessity for the work or improvements to be made;
    3. The public uses for which the property is to be taken;
    4. A description of the work or improvements to be made; and if (i) only a portion of the property is to be taken or (ii) any other property will or is likely to be damaged as the result of the taking, 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 and the construction and operation of such works and improvements, shall be attached as an exhibit to the petition;
    5. The estate, interest or rights in the property to be taken;
    6. A description of the property to be taken sufficient for its identification and a plan or plat of the land to be taken shall be attached as an exhibit to the petition;
    7. As to each separate piece of property to be taken or damaged, the names and residences, so far as known by petitioner, of the defendants who are joined as owners of the property, or of some interest therein, if their names have been ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, or if their names have otherwise been learned; and if the names of other persons or classes of persons to be joined as owners of the property are unknown, such persons may be made defendants under the designation of "Unknown Owners";
    8. Compliance with the provisions of § 25.1-204 and the manner of such compliance; and
    9. Where applicable, compliance with the provisions of § 25.1-102 and the manner of such compliance.
  3. A prayer asking for judgment (i) that the property or the estate, interest or rights therein be condemned and the title thereto vested in the petitioner, (ii) that just compensation be ascertained as provided in § 25.1-230 and awarded, and (iii) for such other relief as may be lawful and proper.
  4. The petition shall be verified by affidavit of a duly authorized officer, agent or attorney for the petitioner.
  5. The petitioner shall furnish the clerk one copy of the petition and all exhibits thereto and such additional copies of the petition as may reasonably be needed by the clerk or any defendant.

    (Code 1919, § 4364; Code 1950, §§ 25-8, 25-9; 1962, c. 426, § 25-46.7; 1980, c. 441; 1981, c. 316; 1991, c. 520; 2003, c. 940.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Nichols on Eminent Domain (Matthew Bender). Chapter 26A Pleadings and Parties. § 26A.03 Property as a Party in Condemnation Proceedings.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Compliance by federal government. - Former similar statute, although procedural, could not apply to condemnation suits instituted by the federal government, insofar as it required the petition to set forth compliance with a statute to which the federal government was not subject. United States v. Crary, 1 F. Supp. 406 (W.D. Va. 1932).

Interest to be condemned limited by petition. - If the petitioner in a condemnation proceeding asks, in its petition, to condemn the fee in lands, it has no right to ask later for a different interest or estate to be condemned for its purposes without an amendment of its petition or the consent of the owner of the property. City of Richmond v. Thompson's Heirs, 116 Va. 178 , 81 S.E. 105 (1914).

Physical or functional unity of tracts involved. - A condemnor is required by statute to state the interest sought to be taken and to file a plat describing the land in which such interest is sought and the land likely to be damaged, and to pay for damage to the adjacent or other property of the landowner. In the application of these statutes the significant circumstance is the physical or functional unity of the tracts involved. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

Description of property by metes and bounds not required. - This section does not require that the petition contain a description of the property by metes and bounds, but requires only a description "sufficient for its identification," and a plat of the land to be condemned attached to the petition as an exhibit. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965).

Reference to other documents. - Although the description in the petition of the property sought to be condemned, or of the location, route, and termini of the improvement, may in itself be insufficient, it may be made sufficient by reference to other documents, such as maps, plats, surveys, deeds, and the like, unless such maps, etc., are insufficient in themselves to aid or render certain the description given in the petition. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965).

Description of adjoining parcel of land. - A power company sought to condemn easements across two tracts of land for the erection of transmission lines. Though one of the landowners showed that he owned another parcel which adjoined that over which the power company sought its easements, it could not be said as a matter of law that this other parcel was likely to be damaged by construction of the transmission lines. Therefore, the court erred in requiring the company, at the landowner's request, to include a description of it in its petition. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

Statement of compliance. - The averment of compliance with the statute requiring an effort to purchase the land need not be in the exact language of the statute if it affirmatively appears that the petitioner has been unable to agree with the owner in respect to the compensation to be paid. Dillon v. Davis, 201 Va. 514 , 112 S.E.2d 137 (1960).

Sufficient petition. - Petition by school board alleging "that it is necessary for the purposes of your petitioner that it acquire said lot" was sufficient. School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919).

Where, although the condemnor incorrectly described by metes and bounds some of the parcels of land to be condemned in its petition, an inspection of the plat attached to the petition would have readily revealed the inaccuracies, the description of the property sought to be condemned in the petition was "sufficient for its identification" and satisfied the requirements of the section. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965).

CIRCUIT COURT OPINIONS

Public use. - Natural gas company did not seek to condemn more property than necessary to achieve the stated public use because the proposed pipeline would go underground in an area already subject to a power easement; no evidence refuted that of the company that future access rights to the properties were needed for future maintenance and safety. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

§ 25.1-207. Inclusion in petition of request for right of entry.

The petition may also include (i) facts and circumstances on the basis of which the petitioner desires to obtain the right of entry as provided in § 25.1-223 or as provided in any charter and (ii) a prayer asking for such right of entry.

(Code 1919, § 4364; Code 1950, §§ 25-8, 25-9; 1962, c. 426, § 25-46.7; 1980, c. 441; 1981, c. 316; 1991, c. 520; 2003, c. 940.)

CASE NOTES

It is proper to permit condemnation of an unlocated secondary easement of ingress and egress. VEPCO v. Coleman, 212 Va. 171 , 183 S.E.2d 130 (1971) (decided under prior law).

Hence, there is no legal reason to deny acquisition of an easement for removal of "danger trees" along a power company's pole line. VEPCO v. Coleman, 212 Va. 171 , 183 S.E.2d 130 (1971) (decided under prior law).

Procedural requirements satisfied. - Where the route of the power line across the landowners' property was fixed by survey, was described in the petition by metes and bounds, and was shown on a plat attached as an exhibit to the petition, this was sufficient to satisfy the procedural requirements of pleading set forth in the section. VEPCO v. Coleman, 212 Va. 171 , 183 S.E.2d 130 (1971) (decided under prior law).

§ 25.1-208. Joinder of separate parcels.

The same petition may join one or more separate pieces, tracts, parcels or lots of land, whether in the same or different ownership and whether or not sought for the same use; however, the court, on its own motion or on motion of any party in furtherance of convenience or to avoid prejudice, may order a severance and separate trial of any claim or claims or of any issue or issues.

(Code 1919, § 4364; Code 1950, §§ 25-8, 25-9; 1962, c. 426, § 25-46.7; 1980, c. 441; 1981, c. 316; 1991, c. 520; 2003, c. 940.)

CASE NOTES

Description of adjoining parcel of land. - A power company sought to condemn easements across two tracts of land for the erection of transmission lines. Though one of the landowners showed that he owned another parcel which adjoined that over which the power company sought its easements, it could not be said as a matter of law that this other parcel was likely to be damaged by construction of the transmission lines. Therefore, the court erred in requiring the company, at the landowner's request, to include a description of it in its petition. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954) (decided under prior law).

§ 25.1-209. Notice of filing of petition.

  1. Upon the filing of a petition for condemnation, the petitioner shall give the owners 21 days' notice of the filing of such petition and of its intention to apply to the court to ascertain just compensation for the property to be taken or affected as a result of the taking and use by the petitioner of the property to be so acquired.
  2. The notice, along with a copy of the petition, shall be served on the owners. In such notice, the petitioner shall give notice that an answer and grounds of defense shall be filed setting forth any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case and to elect to proceed with either the appointment of commissioners or empanelment of a jury for the determination of such just compensation.
  3. The notice may also include notice of the petitioner's application for the right of entry as provided in § 25.1-223 , if such application is included in the petition as authorized by § 25.1-207 .
  4. A copy of the notice required to be served on the owners by this section also shall be served in the same manner upon any tenant entitled to participate in the proceeding pursuant to § 25.1-234 , whose lease has been duly recorded or whose tenancy is actually known to the petitioner. However, a tenant so notified may participate in the proceeding only as permitted by § 25.1-234 .
  5. In addition to any other notice required to be served pursuant to this section, in any proceeding instituted by the Commissioner of Highways under this title or Title 33.2, a copy of the notice of the filing of the petition also shall be served, in the same manner as such notice is served upon owners, upon any person owning structures or improvements for which an outdoor advertising permit has been issued by the Commissioner of Highways pursuant to § 33.2-1208 . (Code 1919, § 4365; Code 1950, § 25-10; 1962, c. 426, § 25-46.9; 1975, c. 189; 1991, c. 520; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

Acts 2011, cc. 36 and 152, cl. 3 provides: "That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title 'Commonwealth Transportation Commissioner' to 'Commissioner of Highways."' "Commissioner of Highways" was substituted for "Commonwealth Transportation Commissioner" in this section.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2006 amendments. - The 2006 amendment by c. 586, in subsection B, in the last sentence, deleted "either" following "proceed with" and "appointment of commissioners or" preceding "empanelment."

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in subsection B, inserted "either" and "appointment of commissioners or."

Research References. - Virginia Forms (Matthew Bender). No. 6-408 Notice of Application for Right of Entry.

§ 25.1-210. Service of notice by order of publication; mailing copy of notice by publication.

  1. Upon the filing of an affidavit by a duly authorized officer, agent or attorney for the petitioner stating that he believes any owner cannot be personally served because after diligent inquiry within the Commonwealth such owner's place of residence cannot be ascertained or, if ascertained, that it is not within this Commonwealth, service of the notice may be made on such owner by an order of publication. Such order shall be published in a newspaper published in the county or city where the property or major portion thereof is located, or if there is no such newspaper then in a newspaper having a general circulation in such city or county, once a week for not less than two successive calendar weeks and shall be posted on the front door of the courthouse within 10 days after the entry of the order of publication. Unknown owners who may have an interest in the property may be served by order of publication in like manner addressed to "Unknown Owners." The clerk shall mail a copy of the notice by publication to any owner who cannot be personally served but whose place of residence is then known.
  2. The provisions of this section and § 25.1-211 shall apply only to orders of publication in condemnation actions. (Code 1919, § 4365; Code 1950, § 25-11; 1962, c. 426, § 25-46.10; 1982, c. 384; 2003, c. 940.)

Research References. - Virginia Forms (Matthew Bender). No. 6-410 Affidavit for Notice by Publication; No. 6-411. Notice by Publication.

§ 25.1-211. Form of notice by publication.

  1. The form of the notice by publication pursuant to § 25.1-210 , to which shall be attached the signature of the clerk, or the deputy clerk for and on behalf of the clerk, shall be substantially as follows:     Virginia: In the (here insert the name of the court)     Name of petitioner     v.                                             At Law . . . . . . . . . .     Name of one or more defendants, et al.,     and (. . . . . .) acres, more or less, of land in     (city or county), Virginia.      To Whom It May Concern:     Pursuant to an order entered on the . . . . . .  day of . . . . . . . . , 20 . . . ., this notice is hereby given:     In this proceeding the petitioner seeks to acquire by condemnation . . . . . . . (here state the estate, interest, or right to be acquired) to certain pieces or parcels of land situated in . . . . . . . . . . . . (county or city), Virginia, for the uses and purposes of the petitioner . . . . . . . . . . . . (here state briefly the uses and purposes and nature of the works and improvements to be made), all of which are described more particularly in the petition and exhibits attached thereto on file in the office of the clerk of his court, to which reference is hereby made for a full and accurate description thereof; and for the appointment of commissioners or the empanelment of a jury to ascertain just compensation to the owners of any estate or interest in the property to be taken or affected as a result of the taking and use thereof by the petitioner.     For such purposes, the petitioner will apply to the court, sitting at . . . . . ., Virginia, on the . . . . . . day of . . . . . . . . . ., 20 . . . ., at . . . . . . o'clock . . . .m., or as soon thereafter as petitioner may be heard, for the appointment of commissioners or the empanelment of a jury to ascertain just compensation as aforesaid.     And it appearing by affidavit filed according to law that the following owners are not residents of the Commonwealth of Virginia, or their names and addresses are not known and that diligence has been used by and on behalf of the petitioner to ascertain such names and addresses without effect: (here set out the names of such owners or classes of owners and addresses where known), it is ordered that the aforesaid owners do appear within 10  days after due publication of this order in the clerk's office of the (here insert the name of the court) and do what is necessary to protect their interests; and it is further ordered that if any of the above named owners desires to assert any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case and to proceed with the appointment of commissioners or the empanelment of a jury he shall file his answer and grounds of defense designating the property in which he claims to be interested, the grounds of any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case and to proceed with the appointment of commissioners or the empanelment of a jury for the determination of just compensation. Should any such owner fail to file his answer and grounds of defense as hereinabove provided, such failure shall not preclude the owner from appearing on the date set for the appointment of commissioners or the empanelment of a jury nor from presenting evidence as to valuation and damage nor from sharing in the award of just compensation according to his interest therein or otherwise protecting his rights, but such failure shall preclude such owner from any other defense by way of pleas in bar, abatement or otherwise.     An extract, Teste:          .....................................................................                 Clerk     (Here state name and address of counsel for petitioner)
  2. Such notice by publication may also include notice of the petitioner's application for the right of entry as provided in § 25.1-223 , whenever such application is included in the petition. (1962, c. 426, § 25-46.11; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

Research References. - Virginia Forms (Matthew Bender). No. 6-411 Notice by Publication; No. 6-412. Notice by Publication - Another Form.

CIRCUIT COURT OPINIONS

No due process violation found. - While Title 25.1 does not allow a condemnee to petition for a rehearing after 21 days, § 8.01-428 is in fact broader in its protections than § 8.01-322 in that the latter prescribes no time limit for which a court may relieve a party from any judgment or proceeding in which process was not provided; therefore, between the two, a condemnee served by publication is provided with ample opportunities for notice and an opportunity to be heard. The Due Process Clause is not violated by such procedures. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk 2004).

Title designed to ensure just compensation. - Though Title 25.1 denies a condemnee who has been served notice by publication the ability to petition for a rehearing, it is still designed to ensure that the condemnee receives just compensation; while the reasoning may seem slightly circular, the process the Commonwealth chooses to employ in reaching compensation in a condemnation case where notice is given by publication, even if it differs with other procedures in separate code sections, does not deny "just" compensation as long as just compensation is the actual result. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk 2004).

§ 25.1-212. Personal service of notice on nonresident owner.

Personal service of the notice of the filing of a petition may be made by any person, not a party to or otherwise interested in the subject matter in controversy, on a nonresident owner out of this Commonwealth. Such service shall have the same effect, and no other, as an order of publication duly executed, or the publication of notice under this chapter, as the case may be. In such case the return shall be made under oath, and shall show the time and place of such service, that the party serving the same is not a party to or otherwise interested in the subject matter in controversy, and that the person so served is a nonresident of this Commonwealth.

(1962, c. 426, § 25-46.12; 2003, c. 940.)

§ 25.1-213. Filing an answer and grounds of defense; election of commissioners or jury.

Within 21 days of the service thereof any such owner who desires to assert any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case, and to make his election to proceed with either the appointment of commissioners or the empanelment of a jury, shall file (i) his answer and grounds of defense designating the property in which he claims to be interested, (ii) the grounds of any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case, and (iii) his election to proceed with either the appointment of commissioners or the empanelment of a jury for the determination of just compensation.

(Code 1919, § 4365; Code 1950, § 25-10; 1962, c. 426, § 25-46.9; 1975, c. 189; 1991, c. 520; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2, provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586 deleted "and to make his election to proceed with either the appointment of commissioners or the empanelment of a jury" preceding "shall file" and "either the appointment of commissioners" preceding "the empanelment."

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in clause (i), inserted "and to make his election to proceed with either the appointment of commissioners or the empanelment of a jury"; and in clause (iii), inserted "either the appointment of commissioners or."

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Virginia Forms (Matthew Bender). No. 6-407 Notice of Intent to Apply for the Empanelment of Jurors; No. 6-413 Answer and Grounds of Defense.

CASE NOTES

Waiver. - Reversal of a trial court's decision to grant a property owner's motion to dismiss a condemnation action and remand of the matter for further proceedings was appropriate because the owner waived the owner's objection to the trial court's jurisdiction over the matter by failing to timely raise an objection. Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

§ 25.1-214. Failure of owner to file answer and grounds of defense.

  1. The failure of any owner to file an answer and grounds of defense as provided in § 25.1-213 shall not preclude the owner from (i) appearing on the date set for the appointment of commissioners or the empanelment of a jury, (ii) presenting evidence as to valuation and damage, or (iii) sharing in the award of just compensation according to his interest therein or otherwise protecting his rights. However, such failure shall preclude the owner from any other defense by way of pleas in bar or otherwise, except that for good cause shown the time for filing such answer and grounds of defense may be extended by the court.
  2. If the owner fails to file an answer and grounds of defense, or if the owner files an answer and grounds of defense that fails to elect to have the determination of just compensation made by either commissioners or a jury, then the petitioner may elect to have the issue of just compensation determined by either commissioners or a jury, or by the court as provided in § 25.1-220 . (Code 1919, § 4365; Code 1950, § 25-10; 1962, c. 426, § 25-46.9; 1975, c. 189; 1991, c. 520; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2, provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586 deleted "appointment of commissioners or the" in clause (i) of the first sentence in subsection A; and in subsection B, deleted "to file an answer and grounds of defense, or if the owner files an answer and grounds of defense that fails" following "owner fails" and "either commissioners or" following "made by" and "determined by," and made a minor stylistic change.

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in subsection A, inserted "appointment of commissioners or the"; and in subsection B, inserted "to file an answer and grounds of defense, or if the owner files an answer and grounds of defense that fails to" and twice inserted "either commissioners or."

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

CASE NOTES

Failure of the condemnees to file an answer and grounds of defense or to appear and take part in the proceedings does not constitute a waiver of the mandatory requirements of the statute. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965) (decided under prior law).

§ 25.1-215. No notice required where owner is a person under a disability; appointment of guardian ad litem.

If any owner is a person under a disability and has no guardian, conservator or committee in this Commonwealth, (i) no notice need be issued for or served upon such owner and (ii) a guardian ad litem for such owner shall be appointed in the manner prescribed in § 8.01-9 .

(Code 1919, § 4365; Code 1950, § 25-11; 1962, c. 426, § 25-46.13; 1997, c. 801; 2003, c. 940.)

Research References. - Virginia Forms (Matthew Bender). No. 6-404. Petition for Condemnation by County for Roadway; No. 6-408.1 Order of Referral for Settlement Conference; No. 6-410. Affidavit for Notice by Publication.

§ 25.1-216. Amendments to pleadings.

  1. No amendments shall be made to the petition or other pleading after it is filed, except by leave of court.
  2. Leave to amend for the addition of new parties and for other purposes shall be liberally granted in furtherance of the ends of justice.
  3. In granting leave to amend, the court may make such provision for notice and opportunity to make response as the court deems reasonable and proper.

    (1962, c. 426, § 25-46.14; 2003, c. 940.)

§ 25.1-217. Substitution of party where owner becomes incapable of defending.

  1. If an owner becomes incapable of defending because of death, insanity, conviction of felony, removal from office, or other cause, his successor in interest may be substituted as a party in his place. Substitution shall be made on motion of the successor or of any party to the proceedings.
  2. If the successor does not make or consent to the motion, the party making the motion shall file it with the court and the procedure thereon and the service of notice of such motion, if any, shall be in whatever manner the court may require as reasonable and proper in the circumstances involved but in no event shall the period of time required for any notice be greater than that which is prescribed for the notice in § 25.1-209 or § 25.1-210 . (1962, c. 426, § 25-46.15; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

§ 25.1-218. Intervention in proceedings.

Any person not already a party to the proceedings whose property, or any interest or estate therein, is to be taken or damaged, or who claims that his other property, or any interest therein will be damaged as a result of the taking and use by the petitioner, may be made a party to the proceeding upon filing a petition for intervention by leave of court (i) at any time prior to the beginning of the trial of the issue of just compensation, or (ii) in the discretion of the court, at such other times during the pendency of the proceeding upon such terms and conditions as the court deems proper, considering all the circumstances at that time. Such a person intervening in the proceeding shall be permitted to assert any claim or defense then germane to the proceeding upon such terms and conditions as the court deems reasonable and proper.

(Code 1919, § 4383; Code 1950, § 25-42; 1962, c. 426, § 25-46.16; 2003, c. 940.)

CASE NOTES

The statutes fail to provide for intervention as a party condemning. Board of Supvrs. v. Board of County Supvrs., 206 Va. 730 , 146 S.E.2d 234 (1966) (decided under prior law).

§ 25.1-219. Pretrial settlement conference; determination of preliminary issues; fixing date of trial on issue of just compensation.

  1. The owner or the petitioner in any condemnation proceeding may request and, if requested, the court shall order a pretrial settlement conference. Such conference shall be conducted by a neutral third party, if available. Such conference may be requested at any time by either the owner or the petitioner. If requested, such conference shall be held within the 30 days preceding the scheduled trial date. If such a conference is ordered, the court shall order both parties to appear with counsel, if any, and the parties shall appear with settlement authority. All settlement conferences conducted pursuant to this provision shall be nonbinding. If settlement is not reached, the matter shall proceed to trial as set upon the docket.
  2. At the hearing upon the petition and application for either the appointment of commissioners or the empanelment of a jury made in accordance with § 25.1-209 , if no answer and grounds of defense has been filed objecting to the jurisdiction of the court to hear the case and to proceed with the appointment of commissioners or the empanelment of a jury, the court shall enter an order fixing a date for the trial of the issue of just compensation and stating that such issue shall be determined by a commission, by a jury or by the court, as provided in § 25.1-220 . If any answer and grounds of defense has been filed objecting to the jurisdiction of the court, the court shall determine such issues or other matters in controversy, excepting the issue of just compensation or matters relating to the ownership of any land or other property or the interests of any party in such land or other property before fixing a date for the trial of the issue of just compensation.
  3. If the court determines all such issues or other matters involving the jurisdiction of the court in favor of the petitioner, the court shall enter an order fixing a date for the trial of the issue of just compensation and stating that such issue shall be determined either by a commission, by a jury or by the court, as provided in § 25.1-220 .
  4. An order of the court in favor of the petitioner on any of the foregoing preliminary issues or matters shall not be a final order for purposes of appeal but an order against the petitioner on such issues or matters shall be a final order for purposes of appeal, if the petitioner so elects. If the order against the petitioner does not dismiss the petition, the petitioner may elect to proceed with the case without waiving any of its objections and exceptions to the rulings of the court.
  5. At such hearing the court shall also determine whether the petitioner shall be granted a right of entry as provided in § 25.1-223 . (1962, c. 426, § 25-46.17; 1991, c. 520; 2000, c. 1029; 2002, c. 272; 2003, c. 940; 2006, c. 586; 2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2, provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586, in subsection B, in the first sentence, deleted "either" following "application for," "appointment of commissioners or the" preceding "empanelment of a jury," and "commission, by a" preceding "jury or by the court," and added the language beginning "before fixing a date" at the end of the last sentence; and deleted "either a commission, by" preceding "a jury or by the court" in subsection C.

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in subsection B, inserted "either the appointment of commissioners or," "appointment of commissioners or the," and "a commission, by"; and in subsection C, inserted "either by a commission."

Research References. - Virginia Forms (Matthew Bender). No. 6-408 Notice of Application for Right of Entry; No. 6-413 Answer and Grounds of Defense.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 73.

CASE NOTES

Notice. - The entry of an order fixing a date for the trial of the issue of just compensation serves as notice of the trial to all interested parties. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965) (decided under prior law).

Thus, prejudicial error was committed where the court failed to comply with the mandatory requirement of the section to enter an order fixing a date for the trial of the issue of just compensation and, as a result, condemnees received no notice of the time of the trial and were not afforded a reasonable opportunity to be heard. Schmidt v. City of Richmond, 206 Va. 211 , 142 S.E.2d 573 (1965) (decided under prior law).

Matters for jury determination. - In a condemnation proceeding where landowners filed a plea in bar arguing that the condemnation was not for a public use, the trial court properly denied the landowners a jury trial on this issue. In §§ 25.1-219 and 25.1-220 , the legislature reserved for decision by the court those issues that did not involve the question of just compensation or the determination of ownership or other interests in the property sought to be condemned. Hoffman Family, LLC v. City of Alexandria, 272 Va. 274 , 634 S.E.2d 722, 2006 Va. LEXIS 89 (2006).

CIRCUIT COURT OPINIONS

Pretrial settlement conference. - Property owner waived any objections to the validity of a certificate or taking and was estopped from claiming or raising these issues because the owner petitioned for distribution and received funds from the certificate of take. Therefore, the owner could request a hearing to request a pretrial settlement conference and a determination by whom it would be conducted, request the court to appoint commissioners or empanel a jury, and fix a date for trial of the issue of just compensation. City of Chesapeake v. Clear Sky Car Wash, L.L.C., 89 Va. Cir. 27, 2014 Va. Cir. LEXIS 145 (Chesapeake Mar. 11, 2014).

Circuit court's jurisdiction in a condemnation proceeding. - Housing authority, for the purpose of ruling on the circuit court's jurisdiction, made a bona fide offer to a real property owner, because the housing authority complied with the requirements of subsection A of § 25.1-204 , and any dispute regarding the manner by which the property was appraised was to be determined at the just compensation phase of the proceeding. Norfolk Redevelopment & Hous. Auth. v. Cent. Radio, Inc., 82 Va. Cir. 240, 2011 Va. Cir. LEXIS 85 (Norfolk Feb. 17, 2011).

§ 25.1-220. Who determines issue of just compensation.

The issue of just compensation shall be determined by a commission or a jury, upon a timely election made by an owner as provided in § 25.1-213 . However, by agreement of the petitioner and all the parties who are sui juris that have appeared or responded, or, if no owner upon proper notice has appeared or responded, or has filed an answer and grounds of defense that fails to elect to have the determination of just compensation made by either commissioners or a jury, then, upon motion of the petitioner, the issue of just compensation may be determined by the court.

(1962, c. 426, § 25-46.19; 1984, c. 377; 1991, c. 520; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2, provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586, in the first sentence, deleted "a commission or" following "determined by" and "as provided in § 25.1-213 " at the end and "either commissioners or" following "made by" in the last sentence.

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, inserted "a commission or," "as provided in § 25.1-213 ," and "either commissioners or."

Law review. - For annual survey article, "Real Estate Law," see 41 U. Rich. L. Rev. 257 (2006).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Nichols on Eminent Domain (Matthew Bender). Chapter 26D Abandonment, Dismissal of Action, and Defenses. § 26D.02 Assessment of Damages.

Virginia Forms (Matthew Bender). No. 6-407 Notice of Intent to Apply for the Empanelment of Jurors.

CASE NOTES

No burden of proof on issue of just compensation. - Because of the great responsibility and relative independence vested in condemnation commissioners to ascertain the value of the property to be taken, there is no burden of proof, in the common-law sense, on the issue of just compensation, and no ultimate "risk of non-persuasion" on the issue. Hamer v. School Bd., 240 Va. 66 , 393 S.E.2d 623 (1990) (decided under prior law).

Landowners failed to meet burden of proof as to unity of use. - Trial court judgment confirming a commission's award of damages that included additional parcels was reversed in the Commonwealth's appeal in a condemnation proceeding, because the landowners failed to sustain their burden of proof as to the element of unity of use with regard to having the additional parcels included in the proceeding. The court found that the landowners' alleged business plan for development of the additional parcels was speculative and such alleged commercial development was too remote to establish any unity of use between the three actual taken parcels and the eight parcels the landowners sought to have added to have justified any award of damages for the additional parcels. Commonwealth Transp. Comm'r v. Glass, 270 Va. 138 , 613 S.E.2d 411, 2005 Va. LEXIS 67 (2005).

Matters for jury determination. - In a condemnation proceeding where landowners filed a plea in bar arguing that the condemnation was not for a public use, the trial court properly denied the landowners a jury trial on this issue. In §§ 25.1-219 and 25.1-220 , the legislature reserved for decision by the court those issues that did not involve the question of just compensation or the determination of ownership or other interests in the property sought to be condemned. Hoffman Family, LLC v. City of Alexandria, 272 Va. 274 , 634 S.E.2d 722, 2006 Va. LEXIS 89 (2006).

CIRCUIT COURT OPINIONS

Just compensation given. - Property owner received just compensation for land taken in a condemnation proceeding, of which the owner was notified by publication, because the owner was not present at the proceedings, the trial court was charged with ensuring that she received the same amount as if she had been represented by counsel at the proceedings; while only one party was present at the hearings, it was not a one-sided result and that was all that a condemnee could ask for. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk 2004).

§ 25.1-221. Consolidation of petitions for trial.

Unless any party demands a separate hearing on the issue of just compensation, the court may consolidate for trial two or more petitions.

(1972, c. 169, § 25-46.17:1; 2003, c. 940.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 58, 62.

CIRCUIT COURT OPINIONS

Intervention. - Tenant, pursuant to § 25.1-221 , had the right to intervene in a condemnation proceeding that was commenced against the owners of the property that the tenant leased. City of Roanoke v. Stegall, 81 Va. Cir. 256, 2010 Va. Cir. LEXIS 112 (Roanoke Oct. 1, 2010).

§ 25.1-222. Proceedings not to be delayed by claims with respect to ownership of property.

No delay in the proceeding for the determination of just compensation shall be occasioned by the claims of the parties with respect to the ownership of any land or other property or to the interest therein of the respective parties. In such cases the court shall require the retention of the deposit of the award for the whole property, or the part in dispute, until the rights of the respective parties have been determined in the manner hereinafter provided in § 25.1-241 ; provided, however, the court shall permit any such claimants to intervene as parties to the proceedings as provided in § 25.1-218 .

(1962, c. 426, § 25-46.18; 2003, c. 940.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 73.

CASE NOTES

Determination of ownership. - When a city sought to quiet title to an asserted easement across a condominium association's beach property, the association's argument that the trial court had no jurisdiction due to the city's failure to enact an ordinance authorizing a quiet title action failed because (1) the statute did not apply to a quiet title suit, (2) the city's ordinance allowed any actions to protect the city's interest in the easement, and (3) the suit was, in fact, a condemnation action in which it was proper to determine the ownership of the subject land, under §§ 25.1-222 and 25.1-241 . Lynnhaven Dunes Condo. Ass'n v. City of Va. Beach, 284 Va. 661 , 733 S.E.2d 911, 2012 Va. LEXIS 194 (2012).

Jurisdiction properly exerted. - Under §§ 25.1-222 and 25.1-241 , not only did the circuit court have the jurisdiction to determine the ownership of the property as between the parties, but it was also required to do so. Accordingly, the trial court did not err in permitting the city to claim it already owned the easements or in determining the parties' ownership rights as part of the condemnation proceedings. 3232 Page Ave. Condo. Unit Owners Ass'n v. City of Va. Beach, 284 Va. 639 , 735 S.E.2d 672, 2012 Va. LEXIS 195 (Nov. 1, 2012).

CIRCUIT COURT OPINIONS

Right of immediate entry. - Supply of natural gas for heating, cooking, and the generation of electricity was clearly a public necessity and essential because the property was already subject to an easement to a power company, and an amount paid into court would adequately protect the interests of the property owners. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Article 3. Right of Entry After Filing Petition.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 33, 97.

§ 25.1-223. Right to enter upon property.

  1. Unless otherwise provided by law, any petitioner may enter upon the property to be condemned at any time after the filing of its petition for condemnation, for the purpose of constructing its works or improvements thereon in the manner proposed by the petitioner upon approval of the petitioner's application for entry as provided in this article.
  2. Notice of the petitioner's application for entry shall be served on the owners in the same manner as is provided in this chapter for service of notice of the filing of a petition.

    (Code 1919, § 4362; 1924, p. 60; Code 1950, §§ 25-3, 25-4; 1962, c. 426, § 25-46.8; 1977, c. 394; 1979, c. 494; 2003, c. 940.)

Cross references. - As to pendency of escheat proceedings no bar to condemnation proceedings, see § 55.1-2441 .

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Virginia Forms (Matthew Bender). No. 6-402 Certificate of Take; No. 6-408 Notice of Application for Right of Entry; No. 6-409 Order Granting Right of Entry; No. 6-411 Notice by Publication.

CIRCUIT COURT OPINIONS

Right of immediate entry. - Evidence was sufficient to show the existence of an immediate necessity and pressing need to satisfy the "emergency" requirement, justifying a natural gas company's early entry onto properties, because there were a number of interruptions to some of the company's larger customers; until the company completed the project, those same customers were at risk of both potential loss of service or potential price fluctuations. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Bona fide offer to purchase property. - Natural gas company made a bona fide effort to purchase properties because the company offered what it considered to be fair market values; the offers were rejected by the property owners, which resulted in the company filing a petition condemnation and application for entry. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

§ 25.1-224. Conditions upon entry; bonding; withdrawal of share by owner.

  1. The court, after 21 days following service of the petitioner's application, and after a hearing thereon, may approve the petitioner's application if it finds that:
    1. A public necessity or an essential public convenience requires such entry for such purposes;
    2. An emergency exists justifying such entry before the time when just compensation can be determined and the amount so determined paid into court; and
    3. The interests of the owners of such property will be adequately protected by (i) the payment into court for the benefit of the owners of the amount of the offer made in accordance with § 25.1-204 or (ii) if no offer is required by that section, by the payment into the court of the amount of a good faith estimate of the value of the property.
  2. In addition, the court may require the petitioner to give a surety bond in an amount and with such surety as the court may determine.
  3. Upon such findings and payment and the giving of such bond, if any is required, with surety in the office of the clerk or with the court, conditioned as required by law and to the effect that the petitioner and its surety or sureties are bound to the owners of the property to be taken or damaged to secure to each of them payment of just compensation therefor as finally determined in the condemnation proceedings, the petitioner shall have the right to enter and construct its works or improvements upon or through the property as described in its petition.
  4. At any time after such payment into court, a party whose property or interest therein is to be taken or damaged may apply to the court for the withdrawal of his share thereof in the manner provided in § 25.1-243 .
  5. The clerk shall deposit the funds so paid to the credit of the court in an account of a type that bears interest.
  6. At any time during the condemnation proceedings, if it appears necessary to do so in order to protect the owners of the property or estate or interest therein to be condemned and assure unto them the payment of just compensation to which they are entitled, the court may require the petitioner to give a new and additional bond in an amount and with sureties satisfactory to the court.

    (Code 1919, § 4362; 1924, p. 60; Code 1950, §§ 25-3, 25-4; 1962, c. 426, § 25-46.8; 1977, c. 394; 1979, c. 494; 2003, c. 940.)

CASE NOTES

Payment of interest. - Former § 25-46.31 (b) provided for the payment of interest "from the time of such entry," and the phrase "from the time of such entry" referred to the time at which entry was authorized under the provisions of the section, namely, "upon such payment and giving of such bond." City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972) (decided under prior law).

Condemnor must take possession or pay award for title to vest. - The award merely establishes the price which the condemnor must pay if it elects to take the property. Before title can vest, the condemnor must either take possession of the land pursuant to the section or pay the award. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984) (decided under prior law).

Applied in Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

CIRCUIT COURT OPINIONS

Right of immediate entry. - Evidence was sufficient to show the existence of an immediate necessity and pressing need to satisfy the "emergency" requirement of subdivision A 2, justifying a natural gas company's early entry onto properties, because there were a number of interruptions to some of the company's larger customers; until the company completed the project, those same customers were at risk of both potential loss of service or potential price fluctuations. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Subdivisions A 1 and 3 had been met by a natural gas company because the supply of natural gas for heating, cooking, and the generation of electricity was clearly a public necessity and essential; as the property was already subject to an easement to a power company, an amount paid into court would adequately protect the interests of the property owners. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Public necessity. - Project was a public necessity requiring entry onto respondent's property for the purpose of constructing and operating the connector pipeline. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

Emergency. - Severity or exigency of a given emergency will vary by degree depending upon the specific situation, the type of emergency, and the surrounding circumstances; for example, an emergency could be described as being a medical emergency, a public safety emergency, an emergency due to natural disaster or weather, a public health emergency, or constitute the basis or rationale for emergency legislation, etc. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Any project proposed by a condemning authority to enter upon property for the purpose of constructing works or improvements necessarily involves planning, designing, and funding; the inclusion of the term "emergency" in Title 25.1 of the Code suggests that it is not limited to tasks that must be completed in days or hours. In that context, there was an emergency or an immediate necessity or pressing need for petitioner to enter onto respondent's property without further delay to complete construction of the project. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

Impact to respondent. - Alleged impact to respondent upon immediate entry was not one of the statutory factors and was not relevant to the court's decision; moreover, the just compensation trial would determine the amount of compensation petitioner was to pay respondent for the acquisition of the easement and damages, if any, by reason of such taking and use. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

Bona fide offer to purchase property. - Natural gas company made a bona fide effort to purchase properties because the company offered what it considered to be fair market values; the offers were rejected by the property owners, which resulted in the company filing a petition condemnation and application for entry. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

No separate hearing. - Respondent's interests would be protected by petitioner's payment into court of $25,000, which represented the amount of its bona fide offer, and respondent's request to hold a separate hearing to determine the amount to be deposited was denied; the statute only refers to the amount of the bona fide offer and does not require a separate proceeding to determine the amount of the deposit, and there was no evidence that petitioner would be unable to pay the award to be determined. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

§ 25.1-225. Abandonment of proceedings after entry upon property.

If the petitioner enters upon the property under this section and does any work thereon, or causes any injury or damage to such property, it shall not thereafter be entitled, without the consent of the owner, to abandon the proceedings for the condemnation thereof, but shall conduct the condemnation proceedings with reasonable dispatch to final judgment.

(Code 1919, § 4362; 1924, p. 60; Code 1950, §§ 25-3, 25-4; 1962, c. 426, § 25-46.8; 1977, c. 394; 1979, c. 494; 2003, c. 940.)

Article 4. Determination of Just Compensation by Commissioners.

§§ 25.1-226, 25.1-227.

Repealed by Acts 2006, c. 586, cl. 2.

Cross references. - For current similar provisions, see §§ 25.1-227.1 and 25.1-227.2 .

Editor's note. - Former §§ 25.1-226 and 25.1-227, which specified requirements for qualification of commissioners and procedures for empanelment of commissioners, were derived from Code 1919, §§ 4366, 4367; 1928, p. 334; 1948, p. 168; Code 1950, §§ 25-12, 25-16; 1962, c. 426, § 25-46.20; 1968, c. 535; 1973, c. 510; 1974, c. 625; 1975, c. 551; 1991, c. 520; 1993, c. 906; 1997, c. 58; 2000, c. 1029; 2003, c. 940.

§ 25.1-227.1. Qualifications of commissioners.

  1. The provisions of this article shall apply in eminent domain proceedings in which the issue of just compensation is to be determined by a commission.
  2. All commissioners shall be disinterested freeholders and residents of the county or city wherein the property or the greater portion of the property to be condemned is situated. No person shall serve as a commissioner for more than one full week within any three-month period, unless agreed to by the parties.

    (2010, c. 835.)

Editor's note. - Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 50, 72, 73, 74, 80.

§ 25.1-227.2. Empanelment of commissioners.

  1. The parties to the eminent domain proceeding may agree upon five or nine persons qualified to act as commissioners, as provided in subsection B of § 25.1-227.1 .
  2. If the parties cannot agree upon five or nine qualified persons to act as commissioners, then each party shall present to the court a list containing the names of at least eight qualified persons. If any party fails to submit such a list of names, the court may, in its discretion, submit such a list on such party's behalf.
  3. From the lists submitted pursuant to subsection B, the court shall select the names of thirteen potential commissioners and at least two alternates. At least 30 days prior to their service, such persons shall be summoned to appear.
  4. If nine qualified persons are selected, the petitioner and the owners shall each have two peremptory challenges and the remaining five shall serve as commissioners. If five qualified persons are agreed upon as provided in subsection A, they shall serve as commissioners.
  5. If an owner has filed no answer to the petition, and the court finds that the owner is not represented by counsel, the court may, in its discretion, and subject to the right of the petitioner to challenge for cause, subpoena five persons who shall serve as commissioners.
  6. Any three or more of the five commissioners may act.
  7. In condemnation proceedings instituted by the Commissioner of Highways, a person owning structures or improvements for which an outdoor advertising permit has been issued by the Commissioner of Highways pursuant to § 33.2-1208 shall be deemed to be an "owner" for purposes of this section. (2010, c. 835; 2016, c. 265; 2018, c. 158.)

Editor's note. - Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

Acts 2011, cc. 36 and 152, cl. 3 provides: "That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title 'Commonwealth Transportation Commissioner' to 'Commissioner of Highways."' "Commissioner of Highways" was substituted for "Commonwealth Transportation Commissioner" in this section.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2016 amendments. - The 2016 amendment by c. 265 substituted "30 days" for "one week" in subsection C.

The 2018 amendments. - The 2018 amendment by c. 158, in subsection B, substituted "eight qualified persons" for "six qualified persons"; and in subsection C, substituted "thirteen potential commissioners" for "nine potential commissioners."

Article 5. Determination of Just Compensation by Jurors.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

§ 25.1-228. Qualification of jurors.

  1. The provisions of this article shall apply in eminent domain proceedings in which the issue of just compensation is to be determined by a jury.
  2. Persons selected as condemnation jurors shall be residents of the county or city in which the property to be condemned, or the greater portion thereof, is situated. No person shall be eligible as a condemnation juror when he, or any person for him, solicits or requests a member of the jury commission to place his name on a list of condemnation jurors. All of the persons included on the list of condemnation jurors shall be freeholders of property within the jurisdiction.

    (Code 1919, §§ 4366, 4367; 1928, p. 334; 1948, p. 168; Code 1950, §§ 25-12, 25-16; 1962, c. 426, § 25-46.20; 1968, c. 535; 1973, c. 510; 1974, c. 625; 1975, c. 551; 1991, c. 520; 1993, c. 906; 1997, c. 58; 2000, c. 1029; 2003, c. 940; 2006, c. 586.)

The 2006 amendments. - The 2006 amendment by c. 586 substituted "All" for "A majority" at the beginning of the last sentence in subsection B.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 74.

§ 25.1-229. Selection of jurors.

  1. Except as otherwise provided in this section, the provisions of Chapter 11 (§ 8.01-336 et seq.) of Title 8.01 shall apply to the selection of condemnation juries mutatis mutandis. While preserving the random selection process set forth in § 8.01-345 , the jury commissioner shall determine the freeholder status of individuals randomly selected by reference to tax rolls or other reliable data the judge of the circuit court deems appropriate.
  2. All of the acting jurors and all of the names drawn for alternate jurors shall be freeholders of property within the jurisdiction. On the day set for trial, jurors who appear shall be called to be sworn on their voir dire until a disinterested and impartial panel is obtained. A juror may be stricken for cause. From the impartial panel the judge shall randomly select 13 jurors. From the panel of 13 jurors each party shall have four peremptory strikes. The court may appoint alternate jurors. Five persons from a panel of not fewer than 13 jurors shall constitute a jury in a condemnation case. If fewer than seven jurors remain before the court prior to the exercise of peremptory strikes, the trial may proceed and be heard by less than five jurors provided the parties agree. However, no trial shall proceed with fewer than three jurors.
  3. The conclusion of the jurors need not be unanimous, and a majority of the jurors may act in the name of the jury.
  4. In condemnation proceedings instituted by the Commissioner of Highways, a person owning structures or improvements for which an outdoor advertising permit has been issued by the Commissioner of Highways pursuant to § 33.2-1208 shall be deemed to be an "owner" for purposes of this section. (Code 1919, §§ 4366, 4367; 1928, p. 334; 1948, p. 168; Code 1950, §§ 25-12, 25-16; 1962, c. 426, § 25-46.20; 1968, c. 535; 1973, c. 510; 1974, c. 625; 1975, c. 551; 1991, c. 520; 1993, c. 906; 1997, c. 58; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2007, cc. 450, 720.)

Editor's note. - Acts 2011, cc. 36 and 152, cl. 3 provides: "That the Virginia Code Commission shall carry out such editorial changes to the Code of Virginia as may be required to reflect the provisions of this act changing the title 'Commonwealth Transportation Commissioner' to 'Commissioner of Highways."' "Commissioner of Highways" was substituted for "Commonwealth Transportation Commissioner" in this section.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2006 amendments. - The 2006 amendment by c. 586 added the last sentence in subsection A; in subsection B, in the fifth sentence, substituted "all of the acting jurors and all of the names" for "a majority of the nine names drawn as acting jurors, and at least one half of the names" and made a related change; deleted the former last sentence, which read: "However, if a juror is so excused within six days prior to trial, an alternate juror will be designated to serve as juror" in subsection E; in subsection F, deleted "in such a manner as the judge may direct" following "shall be called" in the first sentence, deleted "In addition" at the beginning of the second sentence, deleted the former third and fourth sentences which read: "If all nine jurors and two alternates appear and none are stricken for cause, each party shall be entitled to exercise two peremptory strikes. However, if, because of strikes for cause and unexpected failure to appear, fewer than nine but more than five jurors remain before the court, the number of peremptory strikes for each party shall be equally reduced, and the judge shall, if necessary, strike by lot an additional name in order to reduce the jury to five members; however, the judge shall not strike a freeholder if the striking of such name would result in freeholders constituting less than a majority of the members of the jury," and inserted the present third sentence.

The 2007 amendments. - The 2007 amendments by cc. 450 and 720 are identical, and rewrote the section.

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

Article 6. Provisions Applicable to Determinations of Just Compensation.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 50, 73, 75, 77-80, 82; 17 M.J. Streets and Highways, §§ 9, 10; 18 M.J. Trespass, § 1.

§ 25.1-230. Measure of just compensation; oaths of members of body determining just compensation.

  1. The body determining just compensation shall ascertain (i) the value of the property to be taken and (ii) the damages, if any, that may accrue to the residue beyond the specific enhancement in value, if any, to such residue caused by the taking and public use of the property for which it is condemned. Such enhancement in value shall not be offset against the value of the property taken, and if such enhancement in value exceeds the damages, there shall be no recovery against the landowner for such excess.

    In determining the market value of the property before the taking, the body determining just compensation may consider everything a buyer and seller in the marketplace would reasonably consider, but may not consider any increase or decrease in the fair market value of the property caused by the public use for which the property is being acquired, or by the likelihood that the property would be acquired for such public use, other than that due to physical deterioration within the reasonable control of the owner.

    In determining the market value of the residue after the taking, the body determining just compensation may consider everything a buyer and seller in the marketplace would reasonably consider, including the public use for which the property is being acquired, but may not consider any general enhancement the residue experiences in common with surrounding properties as a result of the public use.

    Nothing in this subsection shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

  2. Before executing their duties, each member of the body determining just compensation shall take an oath before an officer authorized by the laws of the Commonwealth to administer an oath that he will faithfully and impartially ascertain the amount of just compensation to which a party is entitled.

    (Code 1919, §§ 4366, 4367; 1928, p. 334; 1948, p. 168; Code 1950, §§ 25-12, 25-16; 1962, c. 426, § 25-46.20; 1968, c. 535; 1973, c. 510; 1974, c. 625; 1975, c. 551; 1991, c. 520; 1993, c. 906; 1997, c. 58; 2000, c. 1029; 2003, c. 940; 2019, c. 788.)

Editor's note. - References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Acts 2019, c. 788, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019."

The 2019 amendments. - The 2019 amendment by c. 788 rewrote subsection A; and made a stylistic change. For applicability, see Editor's note.

Editor's note. - Most of the cases cited below were decided under prior law.

CASE NOTES

"Taking" gives birth to right to "just compensation." - With respect to both the land taken and damages to other property caused by the taking, it is the "taking" which gives birth to the right to "just compensation." Bristol Redevelopment & Hous. Auth. v. Farmbest, Inc., 215 Va. 106 , 205 S.E.2d 406 (1974).

When taking begins. - The taking begins when the condemnation petition is filed, not when taking is proposed. Bristol Redevelopment Hous. Auth. v. Farmbest, Inc., 215 Va. 106 , 205 S.E.2d 406 (1974).

Damages to be considered. - The commissioners are required to take into consideration all damages incident to the construction of a railroad as designed, according to the maps and profiles filed in the clerk's office, and in determining whether this was done the testimony of the commissioners is receivable for the purpose of explaining their report. Lanford v. Virginia Air Line Ry., 113 Va. 68 , 73 S.E. 566 (1912).

Damages not dependent on actual taking of property. - The legislature has full power to require any company exercising the power of eminent domain to make compensation to any person whose property is damaged by the proposed improvement, whether any portion of the property is actually taken or not. To constitute damages there need be no physical invasion of the owner's real property; the owner may recover if the construction and operation of the improvement would amount to a private nuisance at common law, or if it is the cause of substantial damage, though consequential. Tidewater Ry. v. Shartzer, 107 Va. 562 , 59 S.E. 407 (1907).

The words "other property" embrace personal property. City of Richmond v. Williams, 114 Va. 698 , 77 S.E. 492 (1913).

Expense of moving personal property. - The legislative intent is that the landowner's right to damages for the costs of moving personalty from realty to be condemned is limited to costs incurred after the condemnation petition is filed. Bristol Redevelopment & Hous. Auth. v. Farmbest, Inc., 215 Va. 106 , 205 S.E.2d 406 (1974).

It is proper to instruct the commissioners to consider the expense of moving a stack of lumber stored by a tenant upon the land taken and also the expense of removing a fence upon said land. City of Richmond v. Williams, 114 Va. 698 , 77 S.E. 492 (1913).

Whether property is enhanced is not to be considered. - When property in the vicinity of the take is enhanced in value by reason of the take, sales of such property should not be used as evidence of the value of the property taken. Enhancement is difficult to quantify, cause and effect may be conjectural, and commissioners are not at liberty to speculate on such matters. State Hwy. & Transp. Comm'r v. Dennison, 231 Va. 239 , 343 S.E.2d 324 (1986).

Whether a post-take sale has been enhanced by the take is a matter which should be determined by the trial court out of the presence of the commissioners. State Hwy. & Transp. Comm'r v. Dennison, 231 Va. 239 , 343 S.E.2d 324 (1986).

Commissioners were properly permitted to hear and consider evidence that the take eliminated a driveway formerly used as access. State Hwy. & Transp. Comm'r v. Dennison, 231 Va. 239 , 343 S.E.2d 324 (1986).

Before commissioners may consider the existence of mineral deposits as an element of market value, they must determine: (1) that the development of such mineral deposits is consistent with the highest and best use of the property; (2) that there is a market for such minerals in the area; (3) that the mineral deposits are of such quantity and character that they may economically be mined taking into consideration all relevant factors; and (4) that the presence of such mineral deposits on the property contributes to the market value of the property when compared with other land in the area. East Tenn. Natural Gas Co. v. Riner, 239 Va. 94 , 387 S.E.2d 476 (1990).

No burden of proof on issue of just compensation. - Because of the great responsibility and relative independence vested in condemnation commissioners to ascertain the value of the property to be taken, there is no burden of proof, in the common-law sense, on the issue of just compensation, and no ultimate "risk of non-persuasion" on the issue. Hamer v. School Bd., 240 Va. 66 , 393 S.E.2d 623 (1990).

No burden rests on the landowner to prove damages to the residue and he need offer no evidence to show them. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

Pointing out independent items of probable damage. - Independent items of probable damage should not be pointed out to the commissioners in such way as to prompt them to arrive at an award by adding up such items. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

Evidence of the sum paid by a condemnor for similar land is not admissible, because it is not a fair indication of market value, unless it is proved that such purchase of similar land was voluntary and not by way of compromise. Collins v. Pulaski County, 201 Va. 164 , 110 S.E.2d 184 (1959).

Landowner failed to carry burden of proving amount of damage where the record was devoid of any evidence about the fair market value of the residue immediately before and immediately after the taking; there was no evidence in the record other than testimony that the taking hurt landowner "$20,000, at least," from which the commissioners could make such a determination without engaging in conjecture and speculation; and the record did not indicate that the commissioners even viewed the residual parcel. Town of Rocky Mount v. Hudson, 244 Va. 271 , 421 S.E.2d 407 (1992).

Must prove unity of use when including damages to the residue of actual take parcels. - Trial court judgment confirming a commission's award of damages that included additional parcels was reversed in the Commonwealth's appeal in a condemnation proceeding, because the landowners failed to sustain their burden of proof as to the element of unity of use with regard to having the additional parcels included in the proceeding. The court found that the landowners' alleged business plan for development of the additional parcels was speculative and such alleged commercial development was too remote to establish any unity of use between the three actual taken parcels and the eight parcels the landowners sought to have added to have justified any award of damages for the additional parcels. Commonwealth Transp. Comm'r v. Glass, 270 Va. 138 , 613 S.E.2d 411, 2005 Va. LEXIS 67 (2005).

Deduction of benefits. - For the land taken the owner is entitled to receive full compensation in money, without deduction for any benefits, but as to the land not taken, there is to be deducted from the damage sustained peculiar benefits received. Talbot v. City of Norfolk, 158 Va. 387 , 163 S.E. 100 (1932).

The benefits considered in reduction of damages are confined to such as are direct and peculiar to the owner of the land, excluding those which he shares with other members of the community, whose property is not taken. Long v. Shirley, 177 Va. 401 , 14 S.E.2d 375 (1941).

CIRCUIT COURT OPINIONS

Whether property is enhanced is not to be considered. - In a condemnation proceeding, although the city's initial offer erroneously offset the purported enhancement of vacating the old water main easement against the value of the new easement, and the offer did not contain any amount for damages, the city used an erroneous measure of just compensation when it made a deduction from the offer for the claimed enhancement; however, despite the error, the offer was made in good faith as there had been no evidence that the city acted with any ill intent; and mere incorrectness in the quantum of the offer, without a showing of bad faith, was insufficient to make out a violation of the statutory mandate that the city make a bona fide offer before initiating a condemnation proceeding. City of Norfolk v. Hedgepeth, 96 Va. Cir. 199, 2017 Va. Cir. LEXIS 117 (Chesapeake July 27, 2017).

Valuation of property for just compensation. - In a condemnation proceeding, because the court simply could not accept the opinion of defendant's appraiser that the triplex parcel would bring the exact same price per square foot as a sale of all three of defendant's parcels for joint multifamily development, and the city's appraiser appropriately accounted for utility and density, her valuation of the property at $4.13 per square foot for a total of $51,550.66 was more credible; further, because her opinion that the loss of use was only 20% was more appropriate, the proper valuation of the taking of property was $10,310.13. City of Norfolk v. Hedgepeth, 96 Va. Cir. 199, 2017 Va. Cir. LEXIS 117 (Chesapeake July 27, 2017).

In a condemnation proceeding condemning a permanent utility easement along the southern boundary of the triplex parcel owned by defendant, because the evidence conclusively established that the gazebo and pier were located below the mean low-water mark, they were not within the boundaries of the triplex parcel as the property was held in public trust by the Commonwealth, and not within the area of any easement in defendant's land; thus, the appellate court would not consider any potential loss of use of the gazebo and pier in calculating the value of the easement. City of Norfolk v. Hedgepeth, 96 Va. Cir. 199, 2017 Va. Cir. LEXIS 117 (Chesapeake July 27, 2017).

Speculative evidence. - In an eminent domain proceeding, speculative evidence regarding current developmental value of property and diminished value of traffic access was excluded by a motion in limine, but evidence of future developmental value was admissible. Commonwealth Transp. Comm'r v. Pruitt Props., 62 Va. Cir. 95, 2003 Va. Cir. LEXIS 268 (Goochland 2003).

Alleged impact to respondent upon immediate entry was not one of the statutory factors and was not relevant to the court's decision; moreover, the just compensation trial would determine the amount of compensation petitioner was to pay respondent for the acquisition of the easement and damages, if any, by reason of such taking and use. Va. Natural Gas, Inc. v. Colonna's Ship Yard Inc., 101 Va. Cir. 501, 2018 Va. Cir. LEXIS 707 (Norfolk Sept. 18, 2018).

OPINIONS OF THE ATTORNEY GENERAL

"Lost access." - Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law. See opinion of Attorney General to Honorable J. Chapman Petersen, Member, Senate of Virginia, No. 13-099, 2014 Va. AG LEXIS 6 (1/10/14).

§ 25.1-230.1. Lost access and lost profits.

  1. For purposes of this section: "Business" shall have the same meaning as set forth in § 25.1-400 . "Business profit" means the average net income for federal income tax purposes for the three years immediately prior to the later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, for a business or farm operation located on the property taken. "Direct access" means ingress or egress on or off a public road, street, or highway at a location where the property adjoins that road, street, or highway. "Farm operation" shall have the same meaning as set forth in § 25.1-400 .
  2. The body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access caused by the taking or damaging of the property. The body determining just compensation shall ascertain any reduction in value for lost access, if any, that may accrue to the residue as provided in subsection A of § 25.1-230 , by reason of the taking and use by the petitioner. If such peculiar benefit or enhancement in value shall exceed the reduction in value, there shall be no recovery against the landowner for such excess. The body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.
  3. The body determining just compensation shall include in its determination of just compensation lost profits to the owner of a business or farm operation conducted on the property taken only if the owner proves with reasonable certainty the amount of the loss and that the loss is directly and proximately caused by the taking of the property through the exercise of eminent domain and the following conditions are met:
    1. The loss cannot be reasonably prevented by a relocation of the business or farm operation, or by taking steps and adopting procedures that a reasonably prudent person would take and adopt;
    2. The loss will not be included in relocation assistance provided pursuant to Chapter 4 (§ 25.1-400 et seq.);
    3. Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged; and
    4. The loss shall be determined in accordance with generally accepted accounting principles applied on a consistent basis.
  4. Any and all liability for lost access shall be established and made a part of the award of just compensation for damage to the residue of the property taken or damaged, and any and all liability for lost profits shall be set forth specifically in the award. In a partial acquisition, in the event that the owner of the property being condemned and the owner of the business or farm operation claiming lost profits are the same, then any enhancement or peculiar benefit shall be offset against both damage to the residue and lost profits.
  5. It shall not be a requirement of any bona fide effort to purchase the property pursuant to § 25.1-204 or 33.2-1001 that the petitioner include any liability for lost profits in a written offer to purchase the property.
  6. In any proceeding in which the owner of a business or farm operation seeks to recover lost profits, the owner shall provide the condemning authority with all federal income tax returns, if any, relating to the business or farm operation for which the owner seeks lost profits for a period of three years prior to the later of (i) the valuation date or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, and for each year thereafter during the pendency of the condemnation proceeding. The condemning authority shall not divulge the information provided pursuant to this subsection except in connection with the condemnation proceeding. Additionally, unless already named in the petition for condemnation, the owner may intervene in the proceeding by filing a motion to intervene accompanied by a petition for intervention setting forth the basis for the lost profits claim under this chapter. Proceedings to adjudicate lost profits may be bifurcated from the other proceedings to determine just compensation if the lost profits claim period will not expire until one year or later from the date of the filing of the petition for condemnation, but such bifurcation shall not prevent the entry of an order confirming indefeasible title to the land interests acquired by the condemning authority.
  7. Nothing in this section is intended to provide for compensation for inverse condemnation claims for temporary interference with or interruption of a business or farm operation other than that which is directly and proximately caused by a taking or damaging of property through the exercise of eminent domain.

    (2012, cc. 699, 719; 2015, c. 642; 2018, c. 702; 2019, c. 788.)

Editor's note. - References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Acts 2019, c. 788, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019."

Effective date. - Acts 2012, cc. 699 and 719, which enacted this section, in cl. 2 provide: "That this act shall become effective January 1, 2013, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2012 amending Section 11 of Article I of the Constitution of Virginia."

The 2015 amendments. - The 2015 amendment by c. 642 substituted "just compensation" for "damage to the residue" in subsection C; and in subsection D, deleted "and lost profits" following "lost access" and inserted "and any and all liability for lost profits shall... damage to the residue and lost profits."

The 2018 amendments. - The 2018 amendment by c. 702, in subsection A, substituted "later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, for" for "valuation date of" in the definition of "Business profit"; in subsection F, substituted "later of (i) the valuation date or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken" for "valuation date" in the first sentence and added the third and fourth sentences.

The 2019 amendments. - The 2019 amendment by c. 788, in subsection B, substituted "as provided in subsection A of" for "(i) beyond the enhancement in value, if any, to such residue as provided in subdivision A 1 of § 25.1-230 , or (ii) beyond the peculiar benefits, if any, to such other property as provided in subdivision A 2 of." For applicability, see Editor's note.

CASE NOTES

No material impairment of direct access to property. - In a case in which the city council adopted an ordinance closing the portion of a road that abutted the landowner's property to all non-emergency vehicular traffic, that exercise of police power by the city did not, as a matter of law, deprive the landowner of reasonable access because the landowner retained access to its property through a major public highway; and the landowner's lost access to the road, although qualifying as a direct loss of access, was not a material impairment of direct access to property. Thus, the closure did not constitute a taking that entitled the landowner to compensation. Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663 , 842 S.E.2d 413, 2020 Va. LEXIS 59 (May 28, 2020).

OPINIONS OF THE ATTORNEY GENERAL

"Lost access." - Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law. See opinion of Attorney General to Honorable J. Chapman Petersen, Member, Senate of Virginia, No. 13-099, 2014 Va. AG LEXIS 6 (1/10/14).

§ 25.1-231. View of property.

The court shall direct the body determining just compensation, in the custody of the sheriff or sergeant or one of his deputies, to view the property described in the petition with the owner and the petitioner, or any representative of either party, and none other, unless otherwise directed by the court. Upon motion of either party, the judge shall accompany the body determining just compensation upon such view. Such view shall not be considered by the body determining just compensation as the sole evidence in the case.

(Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

The number of this section in Acts 2003, c. 940 was 25.2-231. At the direction of the Virginia Code Commission, the section has been renumbered as 25.1-231 .

Cross references. - As to the required notice when Commissioner of Highways exercises power of eminent domain, see § 33.2-1013 .

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Knowledge to be acquired form view of land. - The commissioners are entitled to weigh the facts and circumstances and determine whether they fairly support the opinions of the witnesses, and in making that determination, they may consider knowledge acquired on view. State Hwy. Comm'r v. Foster, 216 Va. 745 , 222 S.E.2d 780 (1976).

If from a view of the land the commissioners believe property adjacent to that taken will be damaged, compensation for such damage should be awarded. VEPCO v. Webb, 196 Va. 555 , 84 S.E.2d 735 (1954).

The statute stresses that in the performance of their duty to ascertain what is the just compensation for land taken, the commissioners shall themselves view the land. Richmond & Petersburg Elec. Ry. v. Seaboard Air Line Ry., 103 Va. 399 , 49 S.E. 512 (1905).

Awards not to be based solely on view. - The 1962 amendment to former similar section which expressly required the commissioners to consider evidence from the testimony and from a view of the property in making their award was intended to forbid awards based solely on evidence acquired on view. State Hwy. Comm'r v. Foster, 216 Va. 745 , 222 S.E.2d 780 (1976).

When peculiar benefits deducted. - For the land taken the owner is entitled to receive full compensation in money, without deduction for any benefits, but as to the land not taken, there is to be deducted from the damage sustained peculiar benefits received. Talbot v. City of Norfolk, 158 Va. 387 , 163 S.E. 100 (1932).

Participation of tenant in proceedings. - The trial court did not err in refusing to allow a billboard lessee to participate in the selection of commissioners, because former §§ 25-46.21 and 25-46.21:1 restricted the right of a tenant to participate in a valuation hearing. Lamar Corp. v. Commonwealth Transp. Comm'r of Virginia, 262 Va. 375 , 552 S.E.2d 61, 2001 Va. LEXIS 100 (2001).

§ 25.1-232. Testimony on issues; report on just compensation.

  1. Upon completion of the view, the court shall hear the testimony in open court on the issues joined.
  2. When the body determining just compensation shall have arrived at its conclusion, it shall make its report in writing to the court.

    (Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

CASE NOTES

The practice of trial judges of presiding over the taking of evidence before the commissioners is approved. Tiller v. Norfolk & W. Ry., 201 Va. 222 , 110 S.E.2d 209 (1959) (decided under prior law).

CIRCUIT COURT OPINIONS

Testimony of owner. - The opinion testimony of the owner of personal property is competent and admissible on the question of the value of such property, regardless of the owner's knowledge of property values; however, ownership of property by a corporation does not automatically qualify a company employee to testify about the value of company property. Where a foundation of knowledge by a witness for a corporation regarding the value of a particular piece of property is established, the witness' lay opinion regarding the value of such property is admissible. Commonwealth Transp. Comm'r v. Pruitt Props., 62 Va. Cir. 95, 2003 Va. Cir. LEXIS 268 (Goochland 2003).

§ 25.1-233. Confirmation of report; exceptions to report.

  1. The report of the body determining just compensation may be confirmed or set aside forthwith by the court.
  2. However, when the report is so filed and before the court passes thereon, either party shall have the right to file written exceptions to the report, which shall be filed not later than 10 days after the rendering of the report by the body determining just compensation. The court shall have the same power over the reports of the body determining just compensation as it now has over verdicts of juries in civil actions.
  3. Upon hearing of exceptions to the report the court shall not recall and question the members of the body determining just compensation as to the manner in which their report was determined unless there be an allegation in such written exceptions that fraud, collusion, corruption or improper conduct entered into the report. If such allegation is made, the judge shall summon the members of the body determining just compensation to appear and he alone shall question them concerning their actions. If the court be satisfied that fraud, collusion, corruption or improper conduct entered into the report of the body determining just compensation, the report shall be set aside and a new body to determine just compensation shall be empanelled to rehear the case.
  4. If the court be satisfied that no such fraud, collusion, corruption or improper conduct entered into the report of the body determining just compensation, or no other cause exists that would justify setting aside or modifying a jury verdict in civil actions, the report shall be confirmed.

    (Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

Editor's note. - Most of the cases cited below were decided under prior law.

CASE NOTES

Legislative intent. - The legislature did not intend that the statute be utilized to conduct a "fishing expedition" in the hope that upon recalling and questioning the commissioners, improper conduct might appear. VEPCO v. Shaffer, 209 Va. 418 , 164 S.E.2d 590 (1968).

Factual allegation required. - The clear import of the statute was that there had to be some factual allegation of improper conduct which cast suspicion upon the integrity of the commissioners' report before the judge was required to recall the commissioners and question them. A mere allegation of improper conduct, without stating what actions of the commissioners constituted such, was a conclusion of law which furnished neither information for the trial judge to determine the sufficiency of the exceptions nor a basis upon which he might frame questions to examine the commissioners. Whether misconduct entered into the report of the commissioners was a factual question, and good pleading required that such an allegation be supported by facts which, if proved, would amount to misconduct in fact. VEPCO v. Shaffer, 209 Va. 418 , 164 S.E.2d 590 (1968).

The report of the commissioners is prima facie correct. State Hwy. & Transp. Comm'r v. Carter, 216 Va. 639 , 222 S.E.2d 776 (1976).

"Improper conduct" within the meaning of former similar section did not include granting an excessive award, misunderstanding the court's instructions, or proceeding under erroneous principles. VEPCO v. Shaffer, 209 Va. 418 , 164 S.E.2d 590 (1968).

The finding of commissioners in condemnation proceedings is entitled to great weight and is not to be disturbed unless shown to be erroneous by clear proof that it is based upon erroneous principles, or that the amount allowed is so grossly inadequate or excessive as to show prejudice or corruption on their part. This is so because the commissioners may base their finding upon facts obtained by their own view of the property, which do not appear in the record. Appalachian Elec. Power Co. v. Gorman, 191 Va. 344 , 61 S.E.2d 33 (1950); State Hwy. & Transp. Comm'r v. Carter, 216 Va. 639 , 222 S.E.2d 776 (1976).

And their judgment should not be affected by extraneous matters. - Great weight is attached to the award of the commissioners and it is important that their judgment be not affected by relationship to the parties or other extraneous matters. Collins v. Pulaski County, 201 Va. 164 , 110 S.E.2d 184 (1959).

They may not take arbitrary or capricious action. - While the commissioners are not bound by the opinion of experts, or by the apparent weight of the evidence, they may not take arbitrary or capricious action and return awards not related to the value of the property. VEPCO v. Patterson, 204 Va. 574 , 132 S.E.2d 436 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 975, 11 L. Ed. 2d 974 (1964).

An award which bears no reasonable relationship to the testimonial evidence is arbitrary and capricious, for such an award raises an inference that the commissioners failed to consider that evidence and considered the facts observed on view as "the sole evidence in the case." State Hwy. Comm'r v. Foster, 216 Va. 745 , 222 S.E.2d 780 (1976).

Basis for setting aside awards. - If the commissioners' award bears no reasonable relation to the testimonial evidence and show prejudice or corruption on the part of the commissioners, the trial court or Supreme Court should set aside the award. State Hwy. & Transp. Comm'r v. Carter, 216 Va. 639 , 222 S.E.2d 776 (1976).

Determining whether award bears reasonable relationship to evidence. - Whether the commissioners' award bears a reasonable relationship to the evidence, or whether it is based solely on the view of the commissioners, is to be determined from the facts and circumstances of each particular case. Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324 (1977).

With respect to damages to the residue, the commissioners are not bound to accept the value opinions of the experts if they determine that they are not fairly supported by facts and circumstances. State Hwy. Comm'r v. Foster, 216 Va. 745 , 222 S.E.2d 780 (1976).

Prejudice of commissioner may be presumed from occurrences involved. Collins v. Pulaski County, 201 Va. 164 , 110 S.E.2d 184 (1959).

Additional evidence as to the value of the property taken or damaged should not be admitted in passing upon exceptions to a report of the commissioners, since there would then be a trial de novo by the court itself of the very question which had been submitted to, and decided by, the commissioners. Commonwealth Natural Gas Corp. v. Horner, 200 Va. 824 , 108 S.E.2d 403 (1959).

As to whether "good cause be shown against the report," the main thing to be determined, there being no proof of bias or prejudice on the part of the commissioners, is whether or not the award was arrived at through a misconception of the principles of law which should have governed them in their action. APCO v. Johnson, 137 Va. 12 , 119 S.E. 253 (1923).

Exceptions sustained. - When on exceptions to a report of the commissioners in condemnation proceedings, the question was whether good cause had been shown against the report, it appeared from the testimony of the commissioners that four of them arrived at the award made through a misconception of their right to allow future apprehended damages due to negligent construction or operation of the works of the condemnor, and the fifth arrived at such award through a misconception of the rule that a present fair market value at the time of the taking was the "just compensation" contemplated, as the award was arrived at through a misconception of the principles of law, the exceptions were sustained. APCO v. Johnson, 137 Va. 12 , 119 S.E. 253 (1923).

Must prove unity of use when including additional parcels. - Trial court judgment confirming a commission's award of damages that included additional parcels was reversed in the Commonwealth's appeal in a condemnation proceeding, because the landowners failed to sustain their burden of proof as to the element of unity of use with regard to having the additional parcels included in the proceeding. The court found that the landowners' alleged business plan for development of the additional parcels was speculative and such alleged commercial development was too remote to establish any unity of use between the three actual taken parcels and the eight parcels the landowners sought to have added to have justified any award of damages for the additional parcels. Commonwealth Transp. Comm'r v. Glass, 270 Va. 138 , 613 S.E.2d 411, 2005 Va. LEXIS 67 (2005).

Requiring commissioners to testify. - Record held to present a situation in which the lower court should have exercised the discretion granted to it by statute and required the commissioners to appear and testify as to the manner in which awards were formulated. Commonwealth Natural Gas Corp. v. Horner, 200 Va. 824 , 108 S.E.2d 403 (1959).

For a case holding that commissioners should have been called to testify as to formulation of award, see VEPCO v. Patterson, 204 Va. 574 , 132 S.E.2d 436 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 975, 11 L. Ed. 2d 974 (1964).

The trial court properly refused to question the commissioners, who had been recalled, on matters not related to fraud, collusion, corruption or improper conduct. VEPCO v. Shaffer, 209 Va. 418 , 164 S.E.2d 590 (1968).

In determining whether or not commissioners in condemnation proceedings took into consideration all the damages incident to the construction of a railroad through the lands of a proprietor, the testimony of the commissioners was receivable for the purpose of explaining and making clear their report. Lanford v. Virginia Air Line Ry., 113 Va. 68 , 73 S.E. 566 (1912).

Recall. - Mere allegation of improper conduct is not sufficient under this section to require a recall of the commissioners. State Hwy. & Transp. Comm'r v. Garland, 223 Va. 701 , 292 S.E.2d 355 (1982).

Applied in Palmyra Assocs., LLC v. Comm'r of Hwys, No. 191680, 2020 Va. LEXIS 146 (Dec. 17, 2020).

§ 25.1-234. Participation by certain tenants in proceedings to determine just compensation.

  1. Any tenant under a lease with a term of 12 months or longer may participate in the proceedings to determine just compensation to the same extent as his landlord or the owner, if, not less than 10 days prior to the date for the trial of the issue of just compensation, such tenant shall file his petition for intervention, in the manner provided in § 25.1-221 . Such petition for intervention shall include (i) a verified copy of the lease under which he is in possession and (ii) an affidavit by the tenant or his duly authorized agent or attorney, stating:
    1. That he claims an interest in the award; and
    2. That he desires to offer admissible evidence concerning the value of the property being taken or damaged.
  2. For the purposes of this section, the term of a tenant's lease shall include any renewals or extensions for which the tenant has an enforceable written option. The term "tenant" shall include the assignee of the original tenant, as well as any sublessee of the entire demised premises of the owner for the full unexpired term of the sublessor.
  3. Nothing in this section shall be construed, however, as authorizing such tenant to offer any evidence in the proceedings to determine just compensation concerning the value of his leasehold interest in the property involved therein or as authorizing the body determining just compensation to make any such determination in formulating its report.
  4. As used in this section, "proceedings to determine just compensation" means proceedings described in §§ 25.1-231 , 25.1-232 , and 25.1-233 . (1966, c. 512, § 25-46.21:1; 2000, c. 1029; 2003, c. 940.)

Research References. - Virginia Forms (Matthew Bender). No. 6-413 Answer and Grounds of Defense; No. 16-294 Eminent Domain.

CASE NOTES

Where proceedings had not begun, right of compensation did not exist. - The Virginia Condemnation Act did not entitle a franchisee to compensation from the purchase price paid to a franchisor by the state for leasehold property because the code sections provided merely a procedural right once a condemnation proceeding had begun, and no condemnation proceedings had been initiated. Bajwa v. Sunoco, Inc., 320 F. Supp. 2d 454, 2004 U.S. Dist. LEXIS 10187 (E.D. Va. 2004).

Parties in interest at valuation stage. - Former statute provided for a two-stage proceeding. In the first stage, the court determined the fair market value of the land taken and the damage, if any, to the remaining land. The only parties having an interest in the valuation stage were the condemning authority, the owner of the land and certain tenants who had an interest in the award. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984) (decided under prior law).

Participation of tenant in proceedings. - The trial court did not err in refusing to allow a billboard lessee to participate in the selection of commissioners because former §§ 25-46.21 and 25-46.21:1 restricted the right of a tenant to participate in a valuation hearing. Lamar Corp. v. Commonwealth Transp. Comm'r of Virginia, 262 Va. 375 , 552 S.E.2d 61, 2001 Va. LEXIS 100 (2001) (decided under prior law).

CIRCUIT COURT OPINIONS

Tenant's right to intervene. - Municipal authority was not entitled to dismiss a condemnation proceeding because § 25.1-248 was not applicable and the dismissal, as a matter of right, could not be used as a tool to deny a tenant's right, as an intervener, to be heard as defined in § 25.1-234 . Moreover, the municipal authority had a lesser interest by virtue of its inchoate or executory contract right pursuant to a memorandum of settlement with the owners of the property. City of Roanoke v. Stegall, 81 Va. Cir. 256, 2010 Va. Cir. LEXIS 112 (Roanoke Oct. 1, 2010).

Lease did not limit the tenant's potential claims and the lease protected certain portions of the award for the tenant from the landlord attempting to claim them during the proceeding. The lease did not specifically state that the tenant was limited or prohibited from requesting or arguing for portions of the award beyond what the landlord was proscribed from claiming against the tenant and thus, it was apparent that the lease expressed the clear intent of the parties to not limit the tenant's claims during a condemnation proceeding and the tenant could use Virginia's statutory framework to seek an award. Comm'r of Hwys v. Thompson, 105 Va. Cir. 393, 2020 Va. Cir. LEXIS 112 (Frederick County July 27, 2020).

§ 25.1-235. Compensation of commissioners or jurors.

The commissioners or jurors summoned shall, for every day or portion thereof they may be employed in the performance of their duties, receive an allowance in the amount prescribed in § 17.1-618 as compensation for their attendance, travel and other costs, to be paid by the petitioner.

(Code 1919, § 4366; 1928, p. 335; 1948, p. 169; Code 1950, § 25-15; 1962, c. 426, § 25-46.22; 1973, c. 26; 1974, c. 346; 1976, c. 308; 1982, c. 566; 1993, c. 137; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, cc. 177, 835.)

Editor's note. - Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586, in the first sentence, deleted "commissioners appointed or" following "The" and "as the case may be" following "jurors empanelled" and deleted "appointed to serve as commissioners or" preceding "empanelled to serve" in the last sentence.

The 2010 amendments. - The 2010 amendments by c. 177, substituted "summoned" for "empanelled" and "prescribed in § 17.1-618 " for "of $60," deleted "regardless of the number of cases heard on any day," and deleted the last sentence.

The 2010 amendments by c. 835, applicable only to actions filed on or ater July 1, 2010, substituted "commissioners or jurors summoned" for "jurors empanelled" and "in the amount prescribed in § 17.1-618 " for "in the amount of $60" and deleted "regardless of the number of cases heard on any particular day" following "other costs"; and deleted the last sentence, which read: "The persons summoned who appear, but are not empanelled to serve as jurors, shall be allowed $30 for each day they are summoned to appear."

§ 25.1-236. Contracts made part of report.

If the petitioner and the person whose property is being condemned under the provisions of this chapter shall, before the report of just compensation is made, (i) enter into any contract in relation to building, operating, or maintaining the proposed work, or in relation to fencing, culverts, depots, stations, crossings, sidings, cattle guards, damage from fire, injury to or destruction of property, real or personal, or like matters, and (ii) introduce such contract at the trial of the issue of just compensation, such contract shall be accepted and made a part of the report of the award of just compensation. Upon confirmation of such report, the contract shall thereafter run as a covenant with the land or with the interest or estate therein taken.

(Code 1919, § 4380; Code 1950, §§ 25-36, 25-37; 1962, c. 426, § 25-46.23; 2003, c. 940.)

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Liberal construction. - Former similar section should be liberally construed, because if the contract under this section is not given effect, the landowner will be deprived of full compensation. M.M. Crockin Co. v. Portsmouth Redevelopment & Hous. Auth., 437 F.2d 784 (4th Cir. 1971).

Former similar section was a most useful enactment, and cases coming within its terms should receive favorable consideration from the courts; and where one interpretation of the language of the report would give it effect under the statute and the other nullify it, the former should be preferred. Southern Ry. v. Powell, 124 Va. 65 , 97 S.E. 357 (1918).

Failure to set forth contract will not necessarily nullify report. - Report of commissioners in condemnation proceeding should not have been set aside for failure to set forth contract by life tenant conveying land in question to Commonwealth, where circumstances showed that parties did not rely on contract but abandoned it and did not desire it to be set forth in the commissioners' report. Grubb v. Shirley, 174 Va. 204 , 5 S.E.2d 475 (1939).

The legislature never intended that the failure of the commissioners to set forth any contract that might have been entered into between the parties should nullify the report. Grubb v. Shirley, 174 Va. 204 , 5 S.E.2d 475 (1939).

But to preserve rights under contracts they must be set forth in report. - If there are contracts relating to fencing, culverts, etc., prior to condemnation proceedings, and the parties desire to preserve these rights and have them run as covenants with the land, it is incumbent upon them to bring such matters to the attention of the commissioners and to see that their contracts are set forth in the commissioners' report. Grubb v. Shirley, 174 Va. 204 , 5 S.E.2d 475 (1939).

In condemnation proceeding, a contract by a life tenant conveying the land in question to the Commonwealth, if valid, and if it was not waived by the highway commissioner (now Commonwealth Transportation Commissioner), should have been set forth in the report of the commissioners as affecting the interest of the life tenant. Grubb v. Shirley, 174 Va. 204 , 5 S.E.2d 475 (1939).

"Understanding" as to crossing embodied in report. - The action of the commissioners in setting forth in their report, as a part of it, an "understanding" as to the building of a crossing by the railroad for the landowners was authorized by former similar section. Southern Ry. v. Powell, 124 Va. 65 , 97 S.E. 357 (1918).

The commissioners manifestly had this section in mind, and the language adopted to apply that provision to the subject matter was not inappropriate. Southern Ry. v. Powell, 124 Va. 65 , 97 S.E. 357 (1918).

Article 7. Judgment and Post-Judgment Procedure.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

Virginia Forms (Matthew Bender). No. 6-415 Order upon Report of Jury.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 39, 54, 55, 57, 58, 60, 61, 67, 73, 81, 93, 97; 10A M.J. Injunctions, § 59; 15 M.J. Railroads, § 21; 17 M.J. Streets and Highways, §§ 24, 27, 28.

§ 25.1-237. Payment of compensation and damages into court; vesting of title.

Upon the return of the report of the body determining just compensation, and the confirmation, alteration or modification thereof in the manner provided in this chapter, the sum so ascertained by the court as compensation and damages, if any, to the property owners may be paid into court. Upon paying such sum into court, title to the property and rights condemned shall vest in the petitioner to the extent prayed for in the petition, unless such title shall have already vested in the petitioner in a manner otherwise provided by law. The petitioner or its agent shall have the right to enter and construct its works or improvements upon or through the property described in its petition.

(Code 1919, § 4369; Code 1950, §§ 25-19, 25-20; 1962, c. 426, § 25-46.24; 2000, c. 1029; 2003, c. 940.)

Cross references. - As to civil proceedings when owner of property is unknown, see § 8.01-602 .

As to responsibilities of general receiver and clerk, see § 55.1-2519 .

As to constitutional guarantee of compensation, see Va. Const., Art. I, § 11.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Condemnor must take possession or pay award for title to vest. - The award merely establishes the price which the condemnor must pay if it elects to take the property. Before title can vest, the condemnor must either take possession of the land or pay the award. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

For cases decided under former similar statutes, see Blondell v. Guntner, 118 Va. 11 , 86 S.E. 897 (1915); Matthews v. Codd, 150 Va. 166 , 142 S.E. 383 (1928); Mann v. Mann, 119 Va. 630 , 89 S.E. 897 (1916); Mayes v. Mann, 164 Va. 584 , 180 S.E. 425 (1935); Talbot v. Massachusetts Mut. Life Ins. Co., 177 Va. 443 , 14 S.E.2d 335 (1941).

§ 25.1-238. Petitioner may begin work during pendency of proceedings; injunction prohibited.

  1. Upon the return of the report of the body determining just compensation and upon payment into court of the sum ascertained therein, the petitioner or its agents may enter and construct its works or improvements upon or through the property as described in its petition, notwithstanding the pendency of proceedings on any objections to such report in the trial court, or upon an appeal of the case, or the ordering of a new trial of the issue of just compensation or otherwise.
  2. No order shall be made nor any injunction awarded by any court to stay the petitioner in the prosecution of its work unless it is manifest that the petitioner or its agents are transcending their authority and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages.

    (Code 1919, § 4371; Code 1950, § 25-23; 1962, c. 426, § 25-46.25; 2000, c. 1029; 2003, c. 940.)

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

A judgment of condemnation of land for a right-of-way for a railroad is not void where it appears that the proceeding was before the proper court, all proper parties were before the court, and all acts required as preliminary to the application were done or alleged in the petition to have been done, and the right of the petitioner to condemn was put in issue and tried by the court. Entry under such judgment, pending an appeal, is not without legal right. New River, H. & W.R.R. v. Honaker, 119 Va. 641 , 89 S.E. 960 (1916).

Injunction to restrain condemnation. - If the trial court has erred in its judgment that the use for which the land is sought to be condemned is a public use, then it follows as a corollary that the company is transcending its authority, and injunction will lie to restrain the condemnation of private property for private use. Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 (1925).

A use, to be public, must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain. Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 (1925).

The mere recognition of the corporation in its charter as an "internal improvement company" does not make it so, and bring it within the operation of the general laws of the State governing such companies and controlling their operation. Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 (1925).

Improvements placed by petitioner should not be considered by commissioners. - When a railroad company has entered upon land under a judgment of condemnation, and placed its roadbed and track upon the land, but the judgment is reversed on appeal, and a second application is made by the same company to condemn the same land, the value of the improvements placed upon the land by the company acting under the former judgment should not be taken into consideration by the commissioners in estimating the damages to be paid to the owner for the land taken. New River, H. & W.R.R. v. Honaker, 119 Va. 641 , 89 S.E. 960 (1916).

§ 25.1-239. (Effective until January 1, 2022) Finality of order confirming, altering or modifying report; appeal.

  1. The order confirming, altering or modifying the report of just compensation shall be final.
  2. Any party aggrieved thereby may apply for an appeal to the Supreme Court and a supersedeas may be granted in the same manner as is now provided by law and the Rules of Court applicable to civil cases. An order setting aside the report and awarding a new trial of the issue of just compensation shall not be a final order for the purposes of appeal.

    (1962, c. 426, § 25-46.26; 2003, c. 940.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 25.1-239 .

Law review. - For article, "Civil Practice and Procedure," see 54 U. Rich. L. Rev. 7 (2019).

CASE NOTES

Supersedeas affects only the enforceability, not the finality, of an appealable order in a civil case and, consequently, it does not postpone the origin of the 30-day withdrawal time limit in a condemnation case. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993) (decided under prior law).

Right to withdraw the proceedings limited to a point before time for noting appeal. - Unlike condemnation acts in other states that extend a condemnor's right to withdraw the proceedings after it has lost an appeal to a higher court, Virginia limits the right to withdraw the proceeding at a point before the time for noting an appeal. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993) (decided under prior law).

CIRCUIT COURT OPINIONS

Trial court lacked jurisdiction to consider expert costs. - Court denied a motion for hearing on expert costs made by a landowner who had attempted to reserve his right to pursue expert costs in a final order on a jury report of just compensation because the order was a final order as requested by the landowner and no action was taken within 21 days of the order. Commonwealth Transp. Comm'r of Va. v. Mohamed, 80 Va. Cir. 294, 2010 Va. Cir. LEXIS 48 (Fairfax County Apr. 22, 2010).

§ 25.1-239. (Effective January 1, 2022) Finality of order confirming, altering or modifying report; appeal.

  1. The order confirming, altering or modifying the report of just compensation shall be final.
  2. Any party aggrieved thereby may appeal to the Court of Appeals and a supersedeas may be granted in the same manner as is now provided by law and the Rules of Court applicable to civil cases. An order setting aside the report and awarding a new trial of the issue of just compensation shall not be a final order for the purposes of appeal.
  3. Any party aggrieved by a judgment of the Court of Appeals rendered pursuant to subsection B may apply for an appeal to the Supreme Court and a supersedeas may be granted in the same manner as is now provided by law and the Rules of Court applicable to civil cases. An order setting aside the report and awarding a new trial of the issue of just compensation shall not be a final order for the purposes of appeal.

    (1962, c. 426, § 25-46.26; 2003, c. 940; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 25.1-239 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection B, deleted "apply for an" following "thereby may" and substituted "Court of Appeals" for "Supreme Court"; and added subsection C.

Law review. - For article, "Civil Practice and Procedure," see 54 U. Rich. L. Rev. 7 (2019).

CASE NOTES

Supersedeas affects only the enforceability, not the finality, of an appealable order in a civil case and, consequently, it does not postpone the origin of the 30-day withdrawal time limit in a condemnation case. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993) (decided under prior law).

Right to withdraw the proceedings limited to a point before time for noting appeal. - Unlike condemnation acts in other states that extend a condemnor's right to withdraw the proceedings after it has lost an appeal to a higher court, Virginia limits the right to withdraw the proceeding at a point before the time for noting an appeal. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993) (decided under prior law).

CIRCUIT COURT OPINIONS

Trial court lacked jurisdiction to consider expert costs. - Court denied a motion for hearing on expert costs made by a landowner who had attempted to reserve his right to pursue expert costs in a final order on a jury report of just compensation because the order was a final order as requested by the landowner and no action was taken within 21 days of the order. Commonwealth Transp. Comm'r of Va. v. Mohamed, 80 Va. Cir. 294, 2010 Va. Cir. LEXIS 48 (Fairfax County Apr. 22, 2010).

§ 25.1-240. Distribution of money paid into court.

  1. Upon the award being paid into court and the confirmation of the report in the manner provided in § 25.1-237 , the interest or estate of the owner or owners in the property taken or damaged shall terminate and they shall have such interest or estate in the fund and any interest accrued thereon so paid into court as they had in the property so taken or damaged. All liens by a deed of trust, judgment or otherwise upon such property or any interest therein shall be transferred to the fund so paid into court. If the court is satisfied that the persons having an interest therein are before the court, the court shall make such distribution of such money and any interest accrued thereon as to it may seem proper, having due regard to the interest of all persons therein, and in what proportions such money is properly payable.
  2. If it appears from the record in the proceedings or otherwise that the person or persons or classes of persons in the proceedings are vested with the superior right or claim of title in the land or estate or interest therein condemned, or in the proceeds of the award of just compensation, and that the record does not disclose any denial or dispute thereof, by any person or party in interest, the court may direct that the fund and any interest accrued thereon, after the payment therefrom of any taxes, be disbursed and distributed accordingly among the persons entitled thereto or to such person who they may by writing direct.
  3. Notwithstanding the provisions of subsection B, the court may inquire into the rights or claims of any persons appearing to be infants, incapacitated or under any other legal incapacity, independent of any statement in the record.
  4. Any order for distribution shall conserve and protect the rights of such parties in and to the fund and any interest accrued thereon.
  5. The cost of a commissioner in chancery appointed by the court to assist in making the proper distribution in cases of legal disability as herein set forth may be taxed as a cost of the proceedings, to be paid by the petitioner.

    (Code 1919, § 4374; 1942, p. 339; Code 1950, § 25-26; 1962, c. 426, § 25-46.28; 1964, c. 590; 1979, c. 494; 1997, c. 801; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Editor's note. - The cases cited below were decided under prior law.

Former similar section dealt only with money paid into court in condemnation proceedings. Mann v. Mann, 119 Va. 630 , 89 S.E. 897 (1916).

CASE NOTES

The purpose of former similar section was to transfer the title to the acquired land to the condemnor free of liens, and to transfer the liens with full force and effect to the fund paid into court. Manufacturers Trust Co. v. Roanoke Water Works Co., 172 Va. 242 , 1 S.E.2d 318 (1939).

In condemnation proceedings to acquire a waterworks system which was covered by a mortgage securing bonds, it was held that former similar section clearly negatived the theory of the trial court that the rights of the bondholders in the compensation paid into court, beyond the right to collect the principal and interest to the time of the award, were condemned in the proceedings. Manufacturers Trust Co. v. Roanoke Water Works Co., 172 Va. 242 , 1 S.E.2d 318 (1939).

Construction with other law. - Former § 25-46.28, along with §§ 33.1-124, 33.1-128, and former Sup. Ct. R. 3:9A [now Va. Sup. Ct. R. 3:12], authorized a taxpayer availing himself of § 33.1-124 to petition the court to join the lienholder as a party and petition the court either to order the check made payable to the lienholder or to make specific provisions for the lienholder's liability for refund of any excess withdrawal. Thus, where the taxpayer did not so petition the court, but simply requested that the court impose liability upon the person to whom the excess was "paid," he was, within the meaning of the section, paid and therefore was liable for refunding the amount of excess withdrawn that exceeded the actual condemnation award. Lynch v. Commonwealth Transp. Comm'r, 255 Va. 227 , 495 S.E.2d 247 (1998).

§ 25.1-241. Hearing on controversy among claimants to money paid into court.

  1. If it appears to the court that there exists a controversy among claimants to the fund and any interest accrued thereon, or to the ownership of the property subject to the condemnation, the court shall enter an order setting a time for hearing the case and determining the rights and claims of all persons entitled to the fund or to any interest or share therein.
  2. In order to enable the court to determine the proper disposition of the fund and any interest accrued thereon, the court may, for good cause shown, appoint a commissioner in chancery to take evidence upon the conflicting claims. If the fund, exclusive of interest, is $500 or more, the costs incident to or arising out of a trial or a determination of such issues or out of a determination of the ownership of the fund and any interest accrued thereon or the distribution thereof shall not be taxed against the petitioner. If the fund, exclusive of interest, is less than $500, such costs shall be taxed against the petitioner.
  3. Upon a determination by the court of the rights and claims of the persons entitled to the fund and any interest accrued thereon, an order shall be entered directing the disbursement among the persons entitled thereto or to whomsoever they may by writing direct. Any party aggrieved thereby may apply for an appeal as provided in subsection B of § 25.1-239 . (Code 1919, § 4374; 1942, p. 339; Code 1950, § 25-26; 1962, c. 426, § 25-46.28; 1964, c. 590; 1979, c. 494; 1997, c. 801; 2003, c. 940; 2005, c. 885.)

The 2005 amendments. - The 2005 amendment by c. 885 inserted "for good cause shown" in the first sentence of subsection B.

Editor's note. - Most of the cases cited below were decided under prior law.

CASE NOTES

Due process of law. - The mere fact that the respective titles of rival claimants to land sought to be condemned by the government will not be tested by jury trial, but by reference to a special master, is not a denial of due process of law. United States v. Graham, 250 F. 499 (W.D. Va. 1917).

Scope of award. - It was never intended to substitute the finding of a commissioner in chancery for that of the commissioners in determining the value of the respective properties. Commissioners in condemnation proceedings cannot make a valid joint award of a given sum in favor of parties to the proceedings and of persons who are not parties and who are strangers in title to the parties and their property. Swann v. Washington-Southern Ry., 108 Va. 282 , 61 S.E. 750 (1908).

Commissioners appointed to assess the damages for land to be taken for a public use have no power, where there is a controversy or doubt as to who is entitled to such compensation or damage, or in what proportions, to pass upon or determine who is entitled to the same. If, in their report of the damages assessed, they also attempt to apportion the damages amongst those entitled, the apportionment should be stricken out as surplusage. Carson v. City of Richmond, 113 Va. 527 , 75 S.E. 119 (1912).

Court, not commissioners, decides compensation to tenant. - Under former similar section, there was no merit in the contention that the commissioners should report what compensation should be awarded the tenant of the property. That was a duty which the statute imposed upon the court. Fonticello Mineral Springs Co. v. City of Richmond, 147 Va. 355 , 137 S.E. 458 (1927).

Jurisdiction properly exercised. - Under §§ 25.1-222 and 25.1-241 , not only did the circuit court have the jurisdiction to determine the ownership of the property as between the parties, but it was also required to do so. Accordingly, the trial court did not err in permitting the city to claim it already owned the easements or in determining the parties' ownership rights as part of the condemnation proceedings. 3232 Page Ave. Condo. Unit Owners Ass'n v. City of Va. Beach, 284 Va. 639 , 735 S.E.2d 672, 2012 Va. LEXIS 195 (Nov. 1, 2012).

Former section did not authorize an arbitrary distribution of the fund, but meant that the fund was to be distributed as to the court might seem proper, giving due regard to the rights of the parties as fixed by law or by contract. Manufacturers Trust Co. v. Roanoke Water Works Co., 172 Va. 242 , 1 S.E.2d 318 (1939).

How rival claimants regarded. - In any condemnation case, where rival claims to a fund have been filed, each claimant is to be regarded as a plaintiff in respect to his own claim, and as a defendant in respect to the claim of his rival. United States v. Hoblitzell, 2 F. Supp. 832 (W.D. Va. 1932).

Claims are liberally construed. - Claims to a fund paid into court in a proceeding to expropriate forested lands should be liberally construed. United States v. Hoblitzell, 2 F. Supp. 832 (W.D. Va. 1932).

Determination of ownership. - When a city sought to quiet title to an asserted easement across a condominium association's beach property, the association's argument that the trial court had no jurisdiction due to the city's failure to enact an ordinance authorizing a quiet title action failed because (1) the statute did not apply to a quiet title suit, (2) the city's ordinance allowed any actions to protect the city's interest in the easement, and (3) the suit was, in fact, a condemnation action in which it was proper to determine the ownership of the subject land, under §§ 25.1-222 and 25.1-241 . Lynnhaven Dunes Condo. Ass'n v. City of Va. Beach, 284 Va. 661 , 733 S.E.2d 911, 2012 Va. LEXIS 194 (2012).

The time at which holders of deeds of trust must establish their connection with the litigation by evidence is not fixed by the statute, which apparently leaves such determination to the discretion of the court. United States v. Parcel of Land, 54 F. Supp. 901 (E.D. Va. 1944).

Until title vests in the condemnor, a lienholder has not been prejudiced by the condemnation proceeding. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Rights of lienholders in any award do not accrue until the award is paid into court. If payment occurs, the second stage of the proceeding is commenced, and the court determines the rights and claims of all persons entitled to the fund or to any interest or share therein. Williams v. Fairfax County Redevelopment & Hous. Auth., 227 Va. 309 , 315 S.E.2d 202 (1984).

Where part of the condemned property is subject to a lease, the tenant's rights should be asserted and established in accord with the statute. May v. Dewey, 201 Va. 621 , 112 S.E.2d 838 (1960).

The value of a lease should be determined by the court in another proceeding and deducted from the amount of the award made to the landlord for the fee. Stanpark Realty Corp. v. City of Norfolk, 199 Va. 716 , 101 S.E.2d 527 (1958).

The value of a lessee's interest first should be determined and deducted from the award, and the balance then allocated to the landowner. Exxon Corp. v. M & Q Holding Corp., 221 Va. 274 , 269 S.E.2d 371 (1980).

The lessee is entitled to compensation for its removable improvements damaged by the condemnation. Exxon Corp. v. M & Q Holding Corp., 221 Va. 274 , 269 S.E.2d 371 (1980).

Franchisee not entitled to compensation under statute. - The Virginia Condemnation Act did not entitle a franchisee to compensation from the purchase price paid to a franchisor by the state for leasehold property because the code sections provided merely a procedural right once a condemnation proceeding had begun, and no condemnation proceedings had been initiated. Bajwa v. Sunoco, Inc., 320 F. Supp. 2d 454, 2004 U.S. Dist. LEXIS 10187 (E.D. Va. 2004).

CIRCUIT COURT OPINIONS

Condemnation proceeds were paid according to the lienholder's priority. - However, a portion of the settlement earmarked as compensation for destroyed property was paid to the property owner, and not to the deed holder, despite their deed of trust. Commonwealth Transp. Comm'r v. Ahmed, 63 Va. Cir. 483, 2003 Va. Cir. LEXIS 262 (Fairfax County 2003).

§ 25.1-242. Appointment of other body to determine just compensation when new trial ordered; costs of new trial.

  1. If (i) the body determining just compensation fails to report its award of just compensation within a reasonable time after the issue of just compensation is submitted to it; (ii) the body determining just compensation reports that it is unable to make such award; (iii) the body's report is set aside; or (iv) a final order upon its report has been set aside upon appeal and a new trial ordered, the court shall, without further notice, as often as seems to it proper, appoint another body to determine just compensation of the same type as the preceding body, and the matter shall proceed as prescribed in this chapter.
  2. If a new trial of the issue of just compensation is ordered, either in the trial court or upon appeal, upon an exception by an owner with respect to the insufficiency of the award of just compensation, and the subsequent report of the award of just compensation, which is confirmed, is for the same or a lesser total amount, the court shall (i) tax all the costs of the new trial against the owner making such exception and (ii) order repayment to the petitioner of any sum paid to such owner out of the fund paid into court by the petitioner in excess of the total sum ascertained by the second report with interest thereon from the date the original payment was made to such owner until the date such excess is repaid to the petitioner. Interest accruing thereon prior to July 1, 1970, shall be paid at the rate of five percent annually; interest accruing thereafter and prior to July 1, 1981, shall be paid at the rate of six percent annually; interest accruing thereafter and prior to July 1, 2003, shall be paid at the rate of eight percent annually; and interest accruing thereafter shall be paid at the general account's primary liquidity portfolio rate, compiled by the Department of the Treasury for the month in which the original payment was made to such owner.
  3. If such owner fails to make such repayment within 30 days from the date of the entry of such order, the court shall enter judgment therefor against such owner.

    (Code 1919, §§ 4372, 4387; 1934, p. 514; Code 1950, §§ 25-22, 25-24; 1962, c. 426, § 25-46.29; 1970, c. 308; 1981, c. 476; 1991, c. 520; 2000, c. 1029; 2003, c. 940.)

§ 25.1-243. Withdrawal pendente lite of money paid into court.

  1. At any time after payment into court of the sum ascertained in the report of the award of just compensation, notwithstanding the fact that another trial of the issue of just compensation has been ordered or an appeal has been taken from a final order upon the report as provided in subsection B of § 25.1-239 , a party whose property or interest therein is to be taken or damaged may apply to the court, in the manner provided in this section, for the withdrawal pendente lite of all, or any portion of his pro rata share, of the amount deposited for his interest in the property to be taken or damaged, together with his pro rata share of any interest accrued thereon.
  2. If such application requests withdrawal of an amount in excess of 50 percent of such owner's pro rata share of the amount deposited, exclusive of interest, the court may require the applicant, before withdrawing any of such excess, to give or file a bond with the court for the return of the amount withdrawn that exceeds the amount to which the owner is entitled as finally determined in the condemnation proceeding, together with interest from the date of the withdrawal of the amount in excess of 50 percent of such owner's pro rata share of such amount deposited. Such bond shall be with surety approved by the court or clerk, conditioned as required by law to the effect that they are bound to the petitioner in such amount as fixed by the court, but not to exceed double the amount of such excess. Interest accruing prior to July 1, 1970, shall be paid at the rate of five percent annually; interest accruing thereafter and prior to July 1, 1981, shall be paid at the rate of six percent annually; interest accruing thereafter and prior to July 1, 2003, shall be paid at the rate of eight percent annually; and interest accruing thereafter shall be paid at the general account's primary liquidity portfolio rate, compiled by the Department of the Treasury.
  3. Such application shall be verified and shall set forth the owner's interest in the property to be taken or damaged and request withdrawal of a stated amount. A copy of such application for withdrawal shall be served upon the petitioner or its counsel of record. No order permitting such withdrawal shall be entered until at least 21 days after service of such application upon the petitioner without its consent. Within such 21-day period the petitioner may object to such withdrawal by filing written objections thereto with the court on the grounds that the amount of, or the sureties upon the proposed bond are insufficient or that other persons are known or believed to have interests in such property. A copy of any such objections shall be served upon the applicant and such other persons as have appeared or answered, or their attorneys of record.
  4. If any person appears and objects to the proposed withdrawal, or if the petitioner so requests, the court shall determine the amount to be withdrawn, if any, and the persons entitled thereto. Upon such determination, no other person so served shall have any claim against the petitioner to the extent of the amount so withdrawn. The court may follow the procedure prescribed in § 25.1-241 for the determination of any controversy among any claimants to the funds or to the ownership of the property subject to the condemnation, and may tax the costs thereof as therein provided.
  5. If the award that is confirmed finally is for a lesser amount than the amount paid into court, the petitioner shall recover the amount of such excess and, if any person has been paid a greater sum than that to which he is entitled, judgment shall be entered for the petitioner against such person for the amount of such excess and any interest thereon.
  6. The amount of the petitioner's deposit under § 25.1-224 or § 25.1-237 and the amount of such deposit withdrawn by any party in accordance with the provisions of this section shall not be given in evidence or referred to in the trial of the issue of just compensation or be considered by the court or upon appeal in determining whether the award is inadequate or excessive, nor limit the rights of any party to appeal from any decision therein. (1962, c. 426, § 25-46.30; 1970, c. 308; 1979, c. 494; 1981, c. 476; 2003, c. 940.)

Applied in Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

§ 25.1-244. Interest on award; entry of judgment for award and interest.

  1. If the petitioner has exercised pendente lite the right to enter into and take possession of the land or other property, in the manner provided by this chapter, upon the payment into court of the sum ascertained in the report of just compensation as provided in § 25.1-238 , the owner thereof shall receive interest upon the difference between (i) the amount of just compensation as finally determined and awarded to such owner and (ii) the amount, if any, that such owner received or was entitled to receive from the fund so paid into court. Such interest shall be paid for the period from the time of such entry by the petitioner until the time the fund paid into court on account of the final award of just compensation to such owner is available for distribution. Interest accruing prior to July 1, 1970, shall be paid at the rate of five percent annually; interest accruing thereafter and prior to July 1, 1981, shall be paid at the rate of six percent annually; interest accruing thereafter and prior to July 1, 2003, shall be paid at the rate of eight percent annually; and interest accruing thereafter shall be paid at not less than the judgment rate of interest as set forth in § 8.01-382 . No interest shall be payable upon any amount that was withheld from such owner on account of questions involving his right, title, interest or estate in the land or other property taken or damaged.
  2. If the petitioner has exercised the right pendente lite to enter into and take possession of the land or other property to be taken or damaged as provided in § 25.1-224 , the owner thereof shall receive, in addition to the amount that he is entitled to receive under subsection A, interest at the general account's primary liquidity portfolio rate annually upon the difference between (i) the amount of the award of just compensation as finally determined and (ii) the amount previously paid into court as required under § 25.1-224 . Such interest shall be paid for the period from the time of such entry until payment into court of the sum ascertained in the report of just compensation as provided in § 25.1-237 .
  3. No interest shall be allowed during the time any distribution of the fund paid into court was delayed in the trial court or upon appeal, or thereafter, occasioned by any exceptions made by such owner that are not sustained in whole or in part.
  4. If the petitioner fails to pay into court any sum necessary for paying the total award that has been confirmed finally or the interest to which the owner is entitled under this section for a period of 30 days after the time for noting an appeal, the court shall enter judgment therefor against the petitioner, unless the proceedings have been dismissed in accordance with the provisions of Article 8 (§ 25.1-248 et seq.) of this chapter.
  5. Interest allowable under the provisions of this section shall be reduced to the extent the fund has accrued interest during the pendency of the suit in the account required by § 25.1-224 . (1962, c. 426, § 25-46.31; 1970, c. 308; 1979, c. 494; 1981, c. 476; 2003, c. 940; 2017, c. 710.)

The 2017 amendments. - The 2017 amendment by c. 710 substituted "not less than the judgment rate of interest as set forth in § 8.01-382 " for "the general account's primary liquidity portfolio rate, compiled by the Department of the Treasury" in the next-to-last sentence in subsection A.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Actual entry on property. - Former § 25-46.31 (b) (see now § 25.1-244 B) contemplates actual entry upon the property as a prerequisite to payment of interest. It is applied to a condemnor who has asked for the right of immediate entry and has established, to the satisfaction of the court, that immediate entry is necessary. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

Interest from time of entry. - Former § 25-46.31 (b) (see now § 25.1-244 B) provides for the payment of interest "from the time of such entry." City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

The phrase "from the time of such entry" refers to the time at which entry is authorized, namely, "upon such payment and giving of such bond." City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

Permitting owner to retain possession of property rent-free and continue business operations. - Where the city has permitted the owner to retain possession of the property rent-free and to continue its business operations, the city has never "exercised the right pendente lite to enter into and take possession of the land" as required before liability for interest may be imposed. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

Supersede as affects only the enforceability, not the finality, of an appealable order in a civil case and, consequently, it does not postpone the origin of the 30-day withdrawal time limit in a condemnation case. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993).

Expiration of condemnor's right to withdraw eminent domain proceedings. - Reading the language of former § 25-46.34 (see now § 25.1-249 ) in conjunction with the definition of the term "final order" and the language of former § 25-46.34 (d) (see now § 25.1-244 D) requiring a trial court to enter a money judgment, one subject to levy by the land owner, when the condemnor has failed to pay "for a period of 30 days after the time for noting an appeal," the condemnor's right to withdraw eminent domain proceedings expires upon the lapse of 30 days following entry of the final order upon a report of just compensation. At that time, if the condemnor has not exercised its right to note an appeal, the respective rights of the parties vest, title passes to the condemnor, and the landowner becomes entitled to payment of the award. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993).

Interest under former statute. - See VEPCO v. Call, 195 Va. 454 , 78 S.E.2d 670 (1953); VEPCO v. Marks, 195 Va. 468 , 78 S.E.2d 677 (1953).

§ 25.1-245.

Repealed by Acts 2020, c. 1244, cl. 2.

Editor's note. - Acts 2020, c. 1244, cl. 3 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2020, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 or Title 33.2 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2016, and prior to July 1, 2020, shall be governed by the provisions of §§ 25.1-245 and 25.1-245.1 of the Code of Virginia in effect prior to July 1, 2020."

Former § 25.1-245 , pertaining to costs in actions where condemnation is initiated by a public service company, derived from 1962, c. 426, § 25-46.32; 1970, c. 345; 2000, c. 1029; 2003, c. 940; 2005, c. 878; 2007, c. 895; 2016, c. 713.

§ 25.1-245.1. Costs.

  1. Except as otherwise provided in this chapter, all costs of the proceeding in the trial court that are fixed by statute shall be taxed against the condemnor.
  2. The court may in its discretion tax as a cost a fee, not to exceed $1,000, for a survey for the landowner.
  3. If an owner whose property is taken by condemnation under this title or under Title 33.2 is awarded at trial, as compensation for the taking of or damage to his real property, an amount that is 25 percent or more greater than the amount of the condemnor's initial written offer made pursuant to § 25.1-204 , the court may order the condemnor to pay to the owner those (i) reasonable costs, other than attorney fees, and (ii) reasonable fees and travel costs, including reasonable appraisal and engineering fees incurred by the owner, for up to three experts or as many experts as are called by the condemnor, whichever is greater, who testified at trial.
  4. All costs on appeal shall be assessed and assessable in the manner provided by law and the Rules of Court as in other civil cases.
  5. 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 less than $10,000. (2016, c. 713; 2020, c. 1244.)

Editor's note. - Acts 2016, c. 713, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2016, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2016, shall be governed by the provisions of § 25.1-245 of the Code of Virginia in effect prior to July 1, 2016."

Acts 2020, c. 1244, cl. 3 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2020, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 or Title 33.2 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2016, and prior to July 1, 2020, shall be governed by the provisions of §§ 25.1-245 and 25.1-245.1 of the Code of Virginia in effect prior to July 1, 2020."

The 2020 amendments. - The 2020 amendment by c. 1244, rewrote subsection E, which read, "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 , which shall be governed by § 25.1-245 ." For applicability clause, see Editor's note.

Editor's note. - The case cited below was decided under prior law.

CIRCUIT COURT OPINIONS

Trial court lacked jurisdiction to consider expert costs. - Court denied a motion for hearing on expert costs made by a landowner who had attempted to reserve his right to pursue expert costs in a final order on a jury report of just compensation because the order was a final order as requested by the landowner and no action was taken within 21 days of the order. Commonwealth Transp. Comm'r of Va. v. Mohamed, 80 Va. Cir. 294, 2010 Va. Cir. LEXIS 48 (Fairfax County Apr. 22, 2010).

§ 25.1-246. When sheriff to remove forcible resistance to entry.

In any case in which the petitioner may be entitled under the laws of this Commonwealth to enter upon property for purposes of making examinations or surveys as are authorized by law, to enter upon property in accordance with the provisions of this chapter, or to condemn any property, the sheriff, whenever required, shall attend and remove, if necessary, any forcible resistance to any such entry or taking.

(Code 1919, § 4386; Code 1950, § 25-44; 1962, c. 426, § 25-46.33; 1971, Ex. Sess., c. 155; 2003, c. 940.)

§ 25.1-247. Recordation of orders, judgments and proceedings; costs.

  1. The clerk of the court shall make and certify a copy of so much of the orders, judgments and proceedings in the case as shall show such condemnation, including a plat and description of the property condemned, and any such contract, if any there be, as is mentioned in § 25.1-236 . The clerk shall record such material in the land records in his office, and index it in the names of the parties.
  2. If any portion of the land lies in two or more localities, the clerk shall certify a copy of the proceedings to the clerk of the court of each locality. The clerks shall record and index the copy as provided in subsection A.
  3. The fees of the clerk for recording shall be the same as for recording a deed. The fees shall be paid by the petitioner.

    (Code 1919, § 4381; Code 1950, § 25-38; 1962, c. 426, § 25-46.27; 1991, c. 520; 2003, c. 940.)

§ 25.1-247.1. Distribution of funds to owner or owner's attorney.

Notwithstanding any other provision of this chapter, upon any settlement or final determination resulting in a judgment for the owner, whether funds have been paid into the court or are outstanding, all such funds due and owing shall be payable to the owner or, if the owner consents, to the owner's attorney within 30 days of the settlement or final determination, unless otherwise subject to § 25.1-240 , 25.1-241 , 25.1-243 , or 25.1-250 . Nothing in this section shall be construed to alter the priority of liens or any obligation to satisfy or release any outstanding liens on the property or the funds.

(2018, c. 842.)

Article 8. Dismissal of Proceedings.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

§ 25.1-248. Dismissal of proceedings prior to trial on issue of just compensation.

If a hearing has not begun in the trial of the issue of just compensation for the taking or damaging of property and the petitioner has not already acquired the title or a lesser interest or estate in, or taken possession of, such property, the petitioner may upon motion obtain, as a matter of right, an order dismissing the proceeding as to such property. Such order shall also provide, except as may be provided otherwise in a settlement by agreement of the parties, that the petitioner shall pay such owner or owners their reasonable expenses that have been actually incurred by them in preparing for the trial on the issue of just compensation, in such amounts as the court deems just and reasonable.

(Code 1919, § 4387; 1934, p. 514; Code 1950, § 25-22; 1962, c. 426, § 25-46.34; 1972, c. 742; 2003, c. 940.)

CASE NOTES

Dismissal before rights vested. - A board of supervisors has the right to dismiss the proceeding in the circuit court for the condemnation of land for the highway at any time before any rights have vested. Board of Supvrs. v. Proffit, 129 Va. 9 , 105 S.E. 666 (1921) (decided under prior law).

CIRCUIT COURT OPINIONS

Applicability. - Municipal authority was not entitled to dismiss a condemnation proceeding because § 25.1-248 was not applicable and the dismissal, as a matter of right, could not be used as a tool to deny a tenant's right, as an intervener, to be heard as defined in § 25.1-234 . Moreover, the municipal authority had a lesser interest by virtue of its inchoate or executory contract right pursuant to a memorandum of settlement with the owners of the property. City of Roanoke v. Stegall, 81 Va. Cir. 256, 2010 Va. Cir. LEXIS 112 (Roanoke Oct. 1, 2010).

§ 25.1-249. Dismissal of proceedings after commencement of trial on issue of just compensation.

At any time after a hearing has begun in the trial of the issue of just compensation for the taking or damaging of any property or property interest, if the petitioner has not already acquired title or a lesser interest in, or taken possession of, such property, or paid the amount of just compensation into court, and before the time for noting an appeal from any final order upon a report of just compensation, the petitioner may, upon motion, obtain as a matter of right an order dismissing the proceedings as to such property. Such order shall also provide that the petitioner shall pay such owner or owners for the following expenses that have been actually incurred by them in such amounts as the court deems just and reasonable: (i) an attorney's fee; (ii) witness fees, including reasonable fees of not more than three expert witnesses; and (iii) other reasonable expenses and compensation for time spent as a result of the condemnation proceedings. If any such expenses are not paid within 30 days of the entry of such order, judgment therefor shall be entered against the petitioner.

(Code 1919, § 4387; 1934, p. 514; Code 1950, § 25-22; 1962, c. 426, § 25-46.34; 1972, c. 742; 2003, c. 940.)

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.01 Items included. Bryson.

CASE NOTES

Trial court erred in making the county liable for interest from the time of the entry of the order until payment was made since the county did not assert any indications of "taking" or dominion over the landowner's property until legal title passed, and former § 25-46.34 (b) (see now § 25.1-249 ) affords the condemnor 30 days after the trial court sets the final amount of the compensation award to accept or reject the compensation amount without any penalty and the county exercised its option to pay for the property at the set price within the 30-day time period; therefore, there was no statutory or constitutional basis for the trial court to require the county to pay any interest on the compensation award. Bartz v. Board of Supvrs., 237 Va. 669 , 379 S.E.2d 356 (1989) (decided under prior law).

Final order. - Reading the language of former § 25-46.34 (b) (see now § 25.1-249 ) in conjunction with the definition of the term "final order" and the language of former § 25-46.31 (d) (see now § 25.1-244 D) requiring a trial court to enter a money judgment, one subject to levy by the land owner, when the condemnor has failed to pay "for a period of 30 days after the time for noting an appeal," the condemnor's right to withdraw eminent domain proceedings expires upon the lapse of 30 days following entry of the final order upon a report of just compensation. At that time, if the condemnor has not exercised its right to note an appeal, the respective rights of the parties vest, title passes to the condemnor, and the landowner becomes entitled to payment of the award. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993) (decided under prior law).

§ 25.1-250. Effect of failure of petitioner to pay award; expenses.

If the petitioner fails to pay to the parties entitled thereto, or into court, the amount of the award of just compensation before the time for noting an appeal from any final order upon the report of just compensation, the owner or owners of the property to be taken or damaged may, upon motion, obtain as a matter of right an order dismissing the proceeding as to such property. Such order shall also provide that the petitioner shall pay such owner or owners his expenses as provided in § 25.1-249 . If any such expenses are not paid within 30 days of the entry of such order, judgment therefor shall be entered against the petitioner.

(Code 1919, § 4387; 1934, p. 514; Code 1950, § 25-22; 1962, c. 426, § 25-46.34; 1972, c. 742; 2003, c. 940.)

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Supersedeas affects only the enforceability, not the finality, of an appealable order in a civil case and, consequently, it does not postpone the origin of the 30-day withdrawal time limit in a condemnation case. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993).

Effect of suspension of order confirming award pending decision on appeal. - No sum had been finally ascertained by the court, so as to require the condemning party to pay the award into court, where the order of the court confirming the last award was suspended pending decision of the condemnor's appeal to the Supreme Court from this order and a prior order setting aside the first award. Town of Cape Charles v. Ballard Bros. Fish Co., 200 Va. 667 , 107 S.E.2d 436 (1959).

When motion to dismiss proceeding comes too late. - Where the owner made no motion to dismiss the proceeding in the trial court but, on the contrary, excepted to the majority report of the commissioners, succeeded in having it set aside, and thus brought about further proceedings in which it litigated its claims without reference to the nonpayment of the first award, the owner's motion to dismiss in the Supreme Court came too late. Town of Cape Charles v. Ballard Bros. Fish Co., 200 Va. 667 , 107 S.E.2d 436 (1959).

Right of condemnor to withdraw proceedings limited. - Unlike condemnation acts in other states that extend a condemnor's right to withdraw the proceedings after it has lost an appeal to a higher court, Virginia limits the right to withdraw the proceeding at a point before the time for noting an appeal. Board of Supvrs. v. Parsons, 245 Va. 489 , 428 S.E.2d 905 (1993).

§ 25.1-251. Dismissal of proceedings by stipulation of parties; effect of dismissal; dropping parties.

  1. Before the vesting of title, or a lesser interest therein in any property in the manner prescribed in this chapter, the proceedings may be dismissed, in whole or in part, as to any such property upon the filing of a stipulation of dismissal by the parties affected thereby. If such parties so stipulate, the court may vacate any order that has been entered.
  2. Except as otherwise provided in a stipulation of dismissal or order of the court, any dismissal is without prejudice.
  3. The court may at any time drop a defendant unnecessarily or improperly joined.

    (Code 1919, § 4387; 1934, p. 514; Code 1950, § 25-22; 1962, c. 426, § 25-46.34; 1972, c. 742; 2003, c. 940.)

CASE NOTES

Finality of order dismissing proceedings. - See Board of Supvrs. v. Proffit, 129 Va. 9 , 105 S.E. 666 (1921) (decided under prior law).

Chapter 3. Transferring Defeasible Title by Certificate.

Sec.

§ 25.1-300. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Authorized condemnor" means a condemnor that is specifically authorized by law to acquire property through the use of the procedure set forth in this chapter.

"Certificate" means an instrument that, when recorded in the office of the clerk of the circuit court wherein condemnation proceedings are pending or are to be instituted by an authorized condemnor, terminates the interest or estate of the owner of the property described therein and vests defeasible title to such property or interest or estate of the owner in the authorized condemnor. "Certificate" includes a certificate of deposit and a certificate of take.

"Certificate of deposit" means a certificate filed by an authorized condemnor with the court wherein condemnation proceedings are pending or are to be instituted, stating that any sum or sums designated therein shall be paid pursuant to the order of the court, and which is filed in lieu of the payment of funds into court as provided in subdivision A 2 of § 25.1-305 .

"Certificate of take" means a certificate recorded by an authorized condemnor with the court wherein condemnation proceedings are pending or are to be instituted, in connection with which the authorized condemnor has deposited funds with the court as provided in subdivision A 1 of § 25.1-305 .

(2003, c. 940.)

Cross references. - As to acquisition of land and eminent domain for commemorative facilities and historic sites, see § 10.1-114 . As to condemnation of land for school purposes, see § 22.1-127. As to condemnation of oyster bottoms and grounds, see § 28.2-628 .

Research References. - Virginia Forms (Matthew Bender). No. 6-401 Petition for Condemnation of Permanent and Temporary Rights of Entry; No. 6-401.1 Petition for Condemnation - Another Form.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 42, 51.

§ 25.1-301. Applicability of chapter; purpose.

  1. The procedure established by this chapter shall be available for use, at the election of an authorized condemnor, in connection with the acquisition of property by condemnation if the use of the procedure is specifically authorized by law.
  2. It is the intention of this chapter to provide that property may, in the discretion of the authorized condemnor, be condemned as provided in this chapter before, during or after the construction of improvements thereon.

    (2003, c. 940.)

§ 25.1-302. Protection of property.

Authorized condemnors constructing improvements under the authority of this chapter shall use diligence to protect growing crops and pastures and to prevent damage to any property not taken.

(2003, c. 940.)

§ 25.1-303. Effort to acquire property by purchase.

An authorized condemnor shall comply with the applicable provisions of § 25.1-204 and subdivision A 1 of § 25.1-417 before exercising its authority to acquire property by condemnation under the procedure set forth in this chapter.

(2003, c. 940.)

§ 25.1-304. Authority to take possession and title to property.

In addition to any authority it has to exercise the power of eminent domain prior to entering upon property being condemned, an authorized condemnor is authorized to acquire title to and to enter upon and take possession of such property for the purposes for which such condemnor is authorized to condemn such property, and proceed with the construction of improvements upon such property, in accordance with the procedures set forth in this chapter.

(2003, c. 940.)

§ 25.1-305. Authorized condemnor to make payment into court or file certificate of deposit before entering upon land.

  1. Before entering upon or taking possession of property, the authorized condemnor shall either:
    1. Pay into the court wherein condemnation proceedings are pending, or are to be instituted, such sum as is required by subsection B; or
    2. File with the court wherein condemnation proceedings are pending, or are to be instituted, a certificate of deposit issued by the authorized condemnor for such sum as is required by subsection B, which shall be deemed and held for the purpose of this chapter to be payment into the custody of such court.
  2. The amount to be paid into the court as provided in subdivision A 1 or represented by a certificate of deposit as provided in subdivision A 2 shall be the amount that the authorized condemnor estimates to be the fair value of the land taken, or interest therein sought, and damage done, which estimate shall be based on a bona fide appraisal if required by § 25.1-417 ; however, such estimate shall not be less than the current assessed value of the land for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment has been made is to be acquired.
  3. If the condemning authority makes a payment into court as provided in subdivision A 1, it shall also record a certificate of take as provided in § 25.1-307 .
  4. Payment against a certificate of deposit, when ordered by the court named therein, shall be paid by the authorized condemnor.
  5. Nothing in this section shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

    (2003, c. 940; 2013, c. 764.)

The 2013 amendments. - The 2013 amendment by c. 764 added "however, such estimate shall not be less than the current assessed value of the land for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment has been made is to be acquired" at the end of subsection B, and added subsection E.

§ 25.1-306. Notice of intent to file certificate.

The authorized condemnor shall, between 30 and 45 days prior to the date on which any certificate will be filed or recorded pursuant to this chapter, give notice to the owner or tenant, if known, of the freehold by certified or registered mail that such certificate will be filed or recorded with respect to such person's property. Such notice shall contain the following language, as appropriate: (i) "Between 30 and 45 days from the date of this notice, a certificate of take will be recorded in the land records of the circuit court" or (ii) "Between 30 and 45 days from the date of this notice, a certificate of deposit will be recorded in the land records of the circuit court." Such notice shall also state that upon recordation of the certificate, the defeasible title to the property shall transfer 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. Additionally, within four business days of the filing or recording of a certificate, the authorized condemnor shall give notice of such filing or recording to the owner or tenant, if known, of the freehold by providing a copy of such certificate by certified or registered mail.

(2003, c. 940; 2017, c. 563; 2021, Sp. Sess. I, c. 278.)

The 2017 amendments. - The 2017 amendment by c. 563 rewrote the section, which formerly read: "The authorized condemnor shall give notice to the owner or tenant of the freehold by registered mail, if known, that a certificate will be filed with respect to such person's property."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 278, effective July 1, 2021, added the second and third sentences.

§ 25.1-307. Content of certificates; recordation of certificates.

  1. A certificate shall set forth the description of the property being taken or damaged, and the owner or owners, if known, of such property.
  2. 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.

    (2003, c. 940.)

§ 25.1-308. Effect of recordation of certificate; transfer of title or interest in property.

  1. Upon recordation of a certificate:
    1. The interest or estate of the owner of the property described therein shall terminate;
    2. The title to such property shall be vested in the authorized condemnor;
    3. The owner shall have such interest or estate in the funds deposited with the court or represented by the certificate of deposit as the owner had in the property taken or damaged; and
    4. All liens by deed of trust, judgment or otherwise upon such property shall be transferred to such funds.
  2. The title in the authorized condemnor shall be defeasible until (i) the authorized condemnor and such owner reach an agreement as provided in § 25.1-317 , or (ii) the compensation for the taking or damage to the property is determined by condemnation proceedings as provided in § 25.1-313 . (2003, c. 940.)

§ 25.1-309. Property situated in two or more localities.

If the property affected by the certificate is situated in two or more localities, the clerk of the court wherein the certificate is recorded shall certify a copy of such certificate to the clerk of the court of the locality in which any portion of the property lies. The clerk shall record the same in the deed book and index it in the manner prescribed in subsection B of § 25.1-307 .

(2003, c. 940.)

§ 25.1-310. Proceedings for distribution of funds.

  1. Any person shown by a certificate to be entitled to funds deposited with the court or represented by a certificate of deposit may petition the court for the distribution of all or any part of the funds. Any costs of filing such petition or otherwise withdrawing the funds shall be taxed against the condemnor.
  2. A copy of such petition shall be served on either (i) the attorney of record for the petitioner, if a condemnation proceeding is pending; or (ii) if such a proceeding is not pending, an officer or agent of the authorized condemnor who is authorized to accept service of process in any court proceeding on behalf of the authorized condemnor.
  3. The copy of the petition shall be served with a notice returnable to the court not less than 21 days after such service, to show cause, if the authorized condemnor can, why such amount should not be distributed in accordance with the petition.
  4. If the authorized condemnor does not, on or before the return day of the petition, show such cause, and if the record in the proceeding does not disclose any denial or dispute with respect thereto, the court shall enter an order directing the distribution of such amount in accordance with the prayers of the petition. However, in the case of a nonresident petitioner the court may in its discretion require a bond before ordering the distribution.
  5. If funds have been deposited with the court pursuant to subdivision A 1 of § 25.1-305 , any interest that has accrued on the funds shall be payable to the person or persons entitled to receive such funds.
  6. If funds are not then on deposit with the court but are represented by a certificate of deposit pursuant to subdivision A 2 of § 25.1-305 , a certified copy of such order shall forthwith be sent to the authorized condemnor by the clerk. The authorized condemnor shall deposit such funds with the court within 30 days of the date of such order.
  7. Interest shall be payable on funds represented by a certificate of deposit from the date of filing of the certificate of deposit until the funds are paid into court at no less than the judgment rate of interest as set forth in § 8.01-382 . However, interest shall not accrue if an injunction is filed against the authorized condemnor that enjoins the taking of the property described in the certificate.
  8. If the authorized condemnor shows such cause, or if the record in the proceeding discloses any denial or dispute as to the persons entitled to such distribution or to any interest or share therein, the court shall direct such proceedings as are provided by § 25.1-241 for the distribution of awards.
  9. All funds due and owing pursuant to this section shall be payable promptly to the owner or, if the owner consents, to the owner's attorney. Nothing in this subsection shall be construed to alter the priority of liens or any obligation to satisfy or release any outstanding liens on the property or the funds.

    (2003, c. 940; 2018, c. 842; 2020, c. 1245.)

Editor's note. - Acts 2003, cc. 19 and 47, effective March 16, 2003, were identical, and amended §§ 33.1-124 and 33.1-128, from which §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 were derived, to provide for a rate of interest as established pursuant to § 6621 (a) (2) of the Internal Revenue Code where funds are not deposited with the clerk when the certificate is filed. The amendment was made retroactive to awards rendered or certificates of deposit recorded on or after October 1, 2002, and provided that if a higher rate of interest would otherwise have applied pursuant to §§ 33.1-124 and 33.1-128 between October 1, 2002 and March 16, 2003, that rate should apply for that time period. Sections 33.1-124 and 33.1-128 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, cc. 19 and 47 were not incorporated in §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 pursuant to § 30-152.

Acts 2020, c. 1245, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2020, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 or Title 33.2 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2020, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2020."

The 2018 amendments. - The 2018 amendment by c. 842 added subsection I.

The 2020 amendments. - The 2020 amendment by c. 1245 added the last sentence in subsection A; and in subsection G, substituted "no less than the judgment rate of interest as set forth in § 8.01-382 " for "the general account's primary liquidity portfolio rate for the month in which the order pursuant to this section is entered" in the first sentence. For applicability clause, see Editor's note.

§ 25.1-311. Effect of acceptance of payments; evidence as to amount of deposit or certificate.

  1. The acceptance of payment as provided in § 25.1-310 shall not limit the amount to be allowed by the body determining just compensation in a condemnation proceeding, nor limit the rights of any party or parties to the proceeding to appeal from any decision therein.
  2. A party to a condemnation proceeding shall not be entitled to introduce evidence of any amount deposited with the court or represented by a certificate, nor of any amount that has been accepted by any party entitled thereto pursuant to § 25.1-310 . (2003, c. 940.)

Editor's note. - Acts 2003, cc. 19 and 47, effective March 16, 2003, were identical, and amended §§ 33.1-124 and 33.1-128, from which §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 were derived, to provide for a rate of interest as established pursuant to § 6621 (a) (2) of the Internal Revenue Code where funds are not deposited with the clerk when the certificate is filed. The amendment was made retroactive to awards rendered or certificates of deposit recorded on or after October 1, 2002, and provided that if a higher rate of interest would otherwise have applied pursuant to §§ 33.1-124 and 33.1-128 between October 1, 2002 and March 16, 2003, that rate should apply for that time period. Sections 33.1-124 and 33.1-128 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, cc. 19 and 47 were not incorporated in §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 pursuant to § 30-152.

§ 25.1-312. Reformation, alteration, revision, amendment, or invalidation of certificate.

  1. No reformation, alteration, revision, amendment, or invalidation shall be made to a recorded certificate for any purpose without the prior consent of the court wherein such certificate is recorded.
  2. The court shall have jurisdiction to:
    1. Reform, alter, revise, amend, or invalidate, in whole or in part, any certificate; and
    2. Correct mistakes in the description of the property affected by such certificate, the name or names of the owner or owners in the certificate, or any other error that may exist with respect to such certificate for any other purpose.
  3. A petition filed by the authorized condemnor with the court setting forth any error made in such certificate, or the necessity of any change therein, shall be deemed sufficient basis for the reformation, alteration, revision, amendment, or invalidation in whole or in part of such certificate.
  4. The court may enter an order permitting the reformation, alteration, revision, amendment or invalidation, in whole or in part, of the certificate. Such order, together with any revised certificate that may be necessary, shall be recorded in the clerk's office in the same manner required for the recordation of a certificate. The filing of any certificate pursuant to the provisions of this section shall not alter the date of taking as established by the recordation of the original certificate pursuant to § 25.1-307 as to any property that is included in the amended certificate. An amended certificate shall not include any property not included in the original certificate.
  5. Nothing in this section shall be construed to prohibit or preclude any person from recovering damages in a condemnation proceeding resulting from such reformation, alteration, revision, amendment, or invalidation.

    (2003, c. 940; 2019, c. 788.)

Editor's note. - Acts 2019, c. 788, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019."

The 2019 amendments. - The 2019 amendment by c. 788 rewrote subsection E, which read: "Nothing in this section shall be construed to prohibit or preclude any person damaged by reason of a mistake in, or the invalidation of, a certificate from showing the damage suffered by reason of such mistake or invalidation in a condemnation proceeding." For applicability, see Editor's note.

§ 25.1-313. Institution of condemnation proceedings.

The authorized condemnor shall institute condemnation proceedings with respect to property described in a certificate within 180 days of the recordation of the certificate if (i) the authorized condemnor and the owner or owners of property taken or damaged by the authorized condemnor are unable to agree as to the compensation, if any, attributable to such taking or damage or (ii) such agreement cannot be obtained because the owners or one or more of them are under a disability, are unknown, or cannot with reasonable diligence be found within the Commonwealth. However, this section shall not require the institution of condemnation proceedings if they have been instituted prior to the recordation of such certificate.

(2003, c. 940; 2017, c. 593.)

Editor's note. - Acts 2003, c. 317 amended §§ 33.1-127 and 33.1-132, from which §§ 25.1-313 , 25.1-314 and 25.1-318 were derived, to specify a 180 day timeframe for the institution of condemnation proceedings. Sections 33.1-127 and 33.1-132 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, c. 317 were not incorporated in §§ 25.1-313 , 25.1-314 , and 25.1-318 pursuant to § 30-152.

The 2017 amendments. - The 2017 amendment by c. 593 deleted "any time after the recordation of the certificate, but" following "in a certificate," substituted "180" for "60," and "of the recordation of" for "after the completion of the construction of the improvements upon the property described in," and "the" for "this," and made stylistic changes.

§ 25.1-314. Order confirming award; recordation.

The final order of the court confirming an award of compensation to the owner or owners of property shall confirm in the authorized condemnor absolute and indefeasible title to the property that is the subject of the condemnation proceeding. Such order shall be recorded in the current land records in the office of each clerk of court in which the certificate was recorded.

(2003, c. 940.)

Editor's note. - Acts 2003, c. 317 amended §§ 33.1-127 and 33.1-132, from which §§ 25.1-313 , 25.1-314 and 25.1-318 were derived, to specify a 180 day timeframe for the institution of condemnation proceedings. Sections 33.1-127 and 33.1-132 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, c. 317 were not incorporated in §§ 25.1-313 , 25.1-314 , and 25.1-318 pursuant to § 30-152.

§ 25.1-315. Awards in greater amounts than deposit; interest.

  1. If the amount of an award in a condemnation proceeding is greater than that deposited with the court or represented by a certificate of deposit, the excess amount, together with interest accrued on such excess amount, shall be paid into court for the person or persons entitled thereto.
  2. Interest shall accrue on the excess amount at not less than the judgment rate of interest as set forth in § 8.01-382 , computed from the date of such deposit to the date of payment into court and be paid into court for the person or persons entitled thereto. However, any interest that accrued before July 1, 1970, shall be paid at the rate of five percent, and interest accruing thereafter and prior to July 1, 1981, shall be paid at the rate of six percent, and any interest accruing thereafter and prior to July 1, 1994, shall be paid at the rate of eight percent. (2003, c. 940; 2017, c. 710.)

Editor's note. - Acts 2003, cc. 19 and 47, effective March 16, 2003, were identical, and amended §§ 33.1-124 and 33.1-128, from which §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 were derived, to provide for a rate of interest as established pursuant to § 6621 (a) (2) of the Internal Revenue Code where funds are not deposited with the clerk when the certificate is filed. The amendment was made retroactive to awards rendered or certificates of deposit recorded on or after October 1, 2002, and provided that if a higher rate of interest would otherwise have applied pursuant to §§ 33.1-124 and 33.1-128 between October 1, 2002 and March 16, 2003, that rate should apply for that time period. Sections 33.1-124 and 33.1-128 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, cc. 19 and 47 were not incorporated in §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 pursuant to § 30-152.

Acts 2003, c. 318 amended § 33.1-128, from which §§ 25.1-315 and 25.1-316 were derived, to specify that the Commissioner shall not be entitled to recover the amount of excess plus interest in certain circumstances. Section 33.1-128 was not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, c. 318 were not incorporated in §§ 25.1-315 and 25.1-316 pursuant to § 30-152.

The 2017 amendments. - The 2017 amendment by c. 710 substituted "not less than the judgment rate of interest as set forth in § 8.01-382 " for "the general account's primary liquidity portfolio rate, compiled by the Department of the Treasury of Virginia for the month in which the award is rendered" in the first sentence in subsection B.

§ 25.1-316. Awards in lesser amounts than deposit; interest.

If the amount of an award in a condemnation proceeding is less than that deposited with the court or represented by a certificate of deposit, and the person or persons entitled thereto have received a distribution pursuant to § 25.1-310 of such funds, the authorized condemnor shall recover (i) the amount of such excess and (ii) interest on such excess at the general account's primary liquidity portfolio rate. If any person has been paid a greater sum than that to which he is entitled as determined by the award, judgment shall be entered for the authorized condemnor against such person for the amount of such excess and interest.

(2003, c. 940.)

Editor's note. - Acts 2003, cc. 19 and 47, effective March 16, 2003, were identical, and amended §§ 33.1-124 and 33.1-128, from which §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 were derived, to provide for a rate of interest as established pursuant to § 6621 (a) (2) of the Internal Revenue Code where funds are not deposited with the clerk when the certificate is filed. The amendment was made retroactive to awards rendered or certificates of deposit recorded on or after October 1, 2002, and provided that if a higher rate of interest would otherwise have applied pursuant to §§ 33.1-124 and 33.1-128 between October 1, 2002 and March 16, 2003, that rate should apply for that time period. Sections 33.1-124 and 33.1-128 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, cc. 19 and 47 were not incorporated in §§ 25.1-310 , 25.1-311 , 25.1-315 , and 25.1-316 pursuant to § 30-152.

Acts 2003, c. 318 amended § 33.1-128, from which §§ 25.1-315 and 25.1-316 were derived, to specify that the Commissioner shall not be entitled to recover the amount of excess plus interest in certain circumstances. Section 33.1-128 was not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, c. 318 were not incorporated in §§ 25.1-315 and 25.1-316 pursuant to § 30-152.

§ 25.1-317. Agreements as to compensation; petition and order of court thereon; disposition of funds.

  1. At any time after the recordation of a certificate, but prior to the institution of condemnation proceedings, if the authorized condemnor and the owner of the property taken or damaged agree as to compensation for the property taken and damages, if any, caused by such taking, the authorized condemnor shall file with the court a petition so stating. A copy of the agreement shall be attached to the petition. If condemnation proceedings are already pending at the time such agreement is reached, the authorized condemnor shall not be required to file a petition, but shall file a motion to dismiss the condemnation proceedings containing an averment that such agreement has been reached. Upon the filing of such a petition or a motion to dismiss, the court shall enter an order confirming absolute and indefeasible title to the property in the condemning authority, or in the Commonwealth if the condemning authority is an agency of the Commonwealth. Such order shall be recorded in the clerk's office of each court in which the certificate is recorded. Upon entry of such order, the condemning authority shall be relieved of further obligation by virtue of having filed a certificate of deposit with the court.
  2. If it shall appear from such petition and agreement, or motion to dismiss a pending suit, that no person other than those executing such agreement are entitled to the funds deposited with the court or represented by a certificate of deposit, the court shall direct that such funds, after payment therefrom of any taxes that may be charged against the property taken, be disbursed and distributed in accordance with the provisions stated in the petition, or motion, among the parties or persons entitled thereto. If it shall appear that a controversy exists as to the persons entitled to such funds, such distribution shall be made in accordance with the provisions of § 25.1-310 . (2003, c. 940.)

§ 25.1-318. Petition by owner for determination of just compensation.

  1. The owner of property that an authorized condemnor has entered and taken possession of, or taken defeasible title of, pursuant to the provisions of this chapter may petition the circuit court of the locality in which the greater portion of the property lies for the appointment of commissioners or the empanelment of a jury to determine just compensation for the property taken and damages done, if any, to such property, as provided in Chapter 2 (§ 25.1-200 et seq.) if (i) the owner and the authorized condemnor have not reached an agreement as to compensation and damages, if any, and (ii) the authorized condemnor:
    1. Has not completed the construction of the contemplated improvements upon the property after a reasonable time for such construction has elapsed; or
    2. Has not instituted condemnation proceedings within:
      1. Sixty days after completion of the construction of the contemplated improvements upon the property;
      2. One hundred eighty days after the authorized condemnor has entered upon and taken possession of the property, regardless of whether the construction of the contemplated improvements has been completed; or
      3. One hundred eighty days after the recordation of a certificate.
  2. A copy of such petition shall be served upon the authorized condemnor at least 10 days before it is filed in the court. The authorized condemnor shall file an answer thereto within five days after the filing of the petition. If the court finds that the conditions prerequisite for such appointment as provided in subsection A are satisfied, the court shall appoint commissioners or empanel a jury, as requested in the owner's petition, to ascertain the amount of compensation to be paid for the property taken and damages done, if any. The proceedings shall thereafter be governed by the procedure prescribed by Chapter 2 (§ 25.1-200 et seq.) insofar as the same may be applicable. (2003, c. 940; 2006, c. 586; 2010, c. 835; 2017, c. 593.)

Editor's note. - Acts 2003, c. 317 amended §§ 33.1-127 and 33.1-132, from which §§ 25.1-313 , 25.1-314 and 25.1-318 were derived, to specify a 180 day timeframe for the institution of condemnation proceedings. Sections 33.1-127 and 33.1-132 were not repealed by Acts 2003, c. 940, and therefore, at the direction of the Virginia Code Commission the changes made by Acts 2003, c. 317 were not incorporated in §§ 25.1-313 , 25.1-314 , and 25.1-318 pursuant to § 30-152.

Acts 2010, c. 835, cl. 2 provides: "That the provisions of this act shall apply only to actions filed on or after July 1, 2010."

The 2006 amendments. - The 2006 amendment by c. 586 substituted "empanelment of" for "appointment of commissioners or" in subsection A; and deleted "appoint commissioners or" preceding "empanel a jury" in the third sentence in subsection B.

The 2010 amendments. - The 2010 amendment by c. 835, applicable only to actions filed on or after July 1, 2010, in the introductory paragraph in subsection A and in subsection B, deleted "of this title" following "( § 25.1-200 et seq.)"; in the introductory paragraph in subsection A, inserted "appointment of commissioners or the"; and in subsection B, inserted "appoint commissioners or."

The 2017 amendments. - The 2017 amendment by c. 593, in subsection A, inserted "or taken defeasible title of" in first sentence, substituted "hundred eighty days" for "year" in subdivision A 2 b; and added subdivision A 2 c, and made related changes.

Chapter 4. Relocation Assistance and Real Property Acquisition Policies.

General Provisions.

Relocation Assistance.

Real Property Acquisition Policies.

Article 1. General Provisions.

§ 25.1-400. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Business" means any lawful activity, except a farm operation, conducted primarily:

  1. For the purchase, sale, lease and rental of personal and of real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;
  2. For the sale of services to the public;
  3. By a nonprofit organization; or
  4. Solely for the purposes of § 25.1-406 , for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted. "Comparable replacement dwelling" means any dwelling that is (i) decent, safe and sanitary; (ii) adequate in size to accommodate the occupants; (iii) within the financial means of the displaced person; (iv) functionally equivalent; (v) in an area not subject to unreasonable adverse environmental conditions; and (vi) in a location generally not less desirable than the location of the displaced person's dwelling with respect to public utilities, facilities, services and the displaced person's place of employment. "Decent, safe, and sanitary dwelling" means a dwelling that: 1. Is structurally sound, weather tight and in good repair; 2. Has a safe electrical wiring system adequate for lighting and appliances; 3. Contains a heating system capable of maintaining a healthful temperature; 4. Is adequate in size with respect to the number of rooms and area of living space needed to accommodate the displaced household;
  5. Has a separate, well-lighted and ventilated bathroom that provides privacy to the user and contains sink, toilet, and bathing facilities (shower or bath, or both), all operational and connected to a functional water and sewer disposal system;
  6. Provides unobstructed egress to safe open space at ground level. If the unit is above the first floor and served by a common corridor, there must be two means of egress; and
  7. Is free of barriers to egress, ingress and use by a displaced person who is handicapped. "Displaced person" means: 1. Any person who moves from real property, or moves his personal property from real property (i) as a direct result of a written notice of intent to acquire or the acquisition of such real property, in whole or in part, for any program or project undertaken by a state agency or (ii) on which such person is a residential tenant or conducts a small business, a farm operation or a business described in clause 4 of the definition of "business" in this section as a direct result of rehabilitation, demolition, or other displacing activity as the state agency may prescribe, under a program or project undertaken by the state agency in any case in which the state agency determines that such displacement is permanent; 2. Solely for the purposes of §§ 25.1-406 , 25.1-407 , and 25.1-411 , any person who moves from real property, or moves his personal property from real property: (i) as a direct result of a written notice of intent to acquire or the acquisition of other real property, in whole or in part, on which such person conducts a business or farm operation, for a program or project undertaken by a state agency or (ii) as a direct result of rehabilitation, demolition, or other displacing activity as the state agency may prescribe, of other real property on which such person conducts a business or farm operation, under a program or project undertaken by the state agency in any case in which the state agency determines that such displacement is permanent; and 3. Any person who moves or discontinues his business or moves other personal property, or moves from his dwelling, as the direct result of (i) federally assisted activities for the enforcement of a building code or other similar code or (ii) a program of rehabilitation or demolition of buildings conducted pursuant to a federally assisted governmental program. The term "displaced person" does not include (i) a person who has been determined, according to criteria established by the state agency, to be either in unlawful occupancy of the displacement dwelling or to have occupied such dwelling for the purpose of obtaining assistance under this chapter or (ii) in any case where the state agency acquires property for a program or project, any person, other than a person who was an occupant of the property at the time it was acquired, who occupies such property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project. "Dwelling" means the place of permanent or customary and usual residence of a person, according to local custom or law, including a single-family house, a single family unit in a two-family, multi-family, or multi-purpose property; a unit of a condominium or cooperative housing project; a nonhousekeeping unit; a mobile home; or any other residential unit. "Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support. "Mortgage" means such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of, real property, together with the credit instruments, if any, secured thereby. "Nonprofit organization" means an organization that is exempt from paying federal income taxes under § 501 of the Internal Revenue Code (26 U.S.C. § 501). "Person" means any (i) individual or (ii) partnership, corporation, limited liability company, association, or other business entity. "Uneconomic remnant" means a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property and which the state agency has determined has little or no value or utility to the owner. (Code 1950, §§ 33-75.02, 33.1-132.2; 1970, c. 40, § 25-238; 1972, c. 738; 1989, c. 714; 2000, c. 851; 2002, c. 878; 2003, c. 940; 2011, cc. 117, 190.)

Cross references. - As to relocation assistance programs for displaced persons, see § 15.2-729 .

Editor's note. - Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and deleted the definitions for "Appraisal" and "State agency."

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 16 Miscellaneous Proceedings. § 16.03 Eminent Domain Condemnations. Bryson.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 40; 17 M.J. Streets and Highways, § 19.

Editor's note. - The cases cited below were decided under prior law.

CASE NOTES

Chapter enacted to provide assurance of assistance to displaced persons. - The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq., by its terms binds only federal agencies; but a federal agency may not provide funds for state projects involving condemnation without first receiving "satisfactory assurances" that displaced persons will be given such relocation payments and assistance "as are required to be provided by a Federal agency" under the act. In order to qualify for federal funds, therefore, Virginia adopted former Chapter 6 ( §§ 25-235 et seq.) of Title 25 [see now Chapter 4 ( §§ 25.1-400 et seq.) of Title 25.1]. Norfolk Redevelopment & Hous. Auth. v. C & P Tel. Co., 464 U.S. 30, 104 S. Ct. 304, 78 L. Ed. 2d 29 (1983).

Statutory and constitutional rights separate. - Rights and benefits under former Chapter 6 ( §§ 25-235 et seq.) of Title 25 [see now Chapter 4 ( §§ 25.1-400 et seq.) of Title 25.1] are entirely separate and distinct from the landowner's constitutional right to just compensation and damages in a condemnation proceeding. State Hwy. & Transp. Comm'r v. Edwards Co., 220 Va. 90 , 255 S.E.2d 500 (1979).

A displaced person is a person who "moves" as a result of an acquisition or written order to vacate. Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984).

"Displaced" persons include occupants, but not owners. Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984).

§ 25.1-401. Scope of chapter.

  1. The provisions of this chapter shall be applicable to the acquisition of real property by any locality defined as a state agency for purposes of this chapter, notwithstanding the provisions of the locality's charter.
  2. Subject to the provisions of subsection C, unless compliance with the provisions of this chapter is a prerequisite to the receipt and expenditure of federal funds on the projects for which property is acquired, this chapter shall not apply to acquisitions by a state agency (i) that are voluntarily initiated or negotiated by the seller under no threat of condemnation, (ii) where property is dedicated pursuant to the provisions of Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2, or (iii) where property is voluntarily dedicated or donated for no consideration.
  3. In the case of transportation projects funded in whole or in part with state or federal funds, unless compliance with the provisions of this chapter would jeopardize the receipt and expenditure of all or a portion of federal funds that would otherwise be available for transportation projects for which property is acquired or for reimbursement of the benefits provided for in this chapter, this chapter shall apply to acquisitions for such transportation projects by the Department of Transportation and any other state agency that are voluntarily initiated or negotiated by the seller under no threat of condemnation.

    (1972, c. 738, § 25-236; 1979, c. 235; 2000, c. 851; 2003, c. 940; 2014, c. 218.)

The 2014 amendments. - The 2014 amendment by c. 218, substituted "Subject to the provisions of subsection C, unless" for "Unless" at the beginning of subsection B and added subsection C.

OPINIONS OF THE ATTORNEY GENERAL

Grantor's tax. - Grantor's tax may not be assessed on a deed conveying real property from a private bank to the Commonwealth, following Virginia Department of Transportation's purchase of the property for public use on a highway improvement project. See opinion of Attorney General to The Honorable Rebecca P. Hogan, Clerk of the Frederick County Circuit Court, No. 16-010, 2017 Va. AG LEXIS 5 (3/9/17).

§ 25.1-402. Rules and regulations.

All state agencies are hereby authorized to promulgate such rules and regulations as are necessary to carry out the provisions of this chapter.

(1972, c. 738, § 25-253; 2003, c. 940.)

§ 25.1-403. Payments not considered income or resources.

No payment received by a displaced person under this chapter shall be considered as income or resources for the purposes of determining the eligibility or extent of eligibility of any person for assistance under any state law, or for the purposes of this Commonwealth's personal income tax law, corporation tax law, or other tax laws. Such payments shall not be considered as income or resources of any recipient of public assistance and such payments shall not be deducted from the amount of aid to which the recipient would otherwise be entitled.

(Code 1950, §§ 33-75.07, 33.1-132.7; 1970, c. 40, § 25-246; 1972, c. 738; 2003, c. 940.)

§ 25.1-404. Administrative payments; construction.

Nothing in this chapter shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of value or damage not in existence immediately prior to April 10, 1972.

(1972, c. 738, § 25-235.1; 2003, c. 940.)

CASE NOTES

Statutory and constitutional rights separate. - Rights and benefits under this chapter are entirely separate and distinct from the landowner's constitutional right to just compensation and damages in a condemnation proceeding. State Hwy. & Transp. Comm'r v. Edwards Co., 220 Va. 90 , 255 S.E.2d 500 (1979) (decided under prior law).

§ 25.1-405. Funds for implementing provisions of chapter.

Funds appropriated or otherwise available to any state agency for the acquisition of real property or any interest therein for a particular program or project shall be available also to fund any payment required to implement the provisions of this chapter as applied to that program or project.

(1972, c. 738, § 25-244; 2003, c. 940.)

Article 2. Relocation Assistance.

§ 25.1-406. Moving and related expenses.

Whenever the acquisition of real property for a program or project undertaken by a state agency will result in the displacement of any person, the state agency shall make fair and reasonable relocation payments to the displaced person for:

  1. Actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property;
  2. Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, which payments shall not exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the state agency;
  3. Actual reasonable expenses in searching for a replacement business or farm; and
  4. Actual reasonable expenses necessarily incurred in reestablishing a displaced farm, nonprofit organization or small business at its new site, in accordance with criteria established by the state agency but not to exceed $25,000.

    (Code 1950, §§ 33-75.04, 33.1-132.4; 1970, c. 40, § 25-239; 1972, c. 738; 1989, c. 714; 2000, c. 851; 2003, c. 940.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, §§ 35, 36; 17 M.J. Streets and Highways, § 19.

CASE NOTES

Former § 25-239 (see now §§ 25.1-406 to 25.1-408 ) implies that the displaced person must seek payment of benefits. Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984) (decided under prior law).

No private right of action. - Where appellant neither submitted additional documentation requested by the Virginia Department of Transportation (VDOT), did not appeal VDOT's decision, and, instead, sued the Commissioner of Highways in the circuit court for relocation assistance payments under the Virginia Relocation Assistance Act (VRAA), VDOT's demurrer was properly sustained because the substantive law pertaining to the VRAA did not indicate that the General Assembly intended to create or imply the existence of a private right of action as, although this statute required VDOT to make certain relocation payments to displaced individuals, the VRAA did not state an individual right to those payments, or imply such a right. Michael Fernandez, D.D.S., Ltd. v. Comm'r of Highways, 298 Va. 616 , 842 S.E.2d 200, 2020 Va. LEXIS 57 (May 28, 2020).

§ 25.1-407. Optional moving expense allowance for persons displaced from dwelling.

Any displaced person eligible for payments under § 25.1-406 who is displaced from a dwelling may elect to accept the payments authorized by this section in lieu of the payments authorized by § 25.1-406 , which displaced person so electing shall receive a moving expense allowance of an amount determined according to a schedule established by the state agency. The acceptance of the payment authorized by this section shall be in lieu of any payment under § 25.1-406 .

(Code 1950, §§ 33-75.04, 33.1-132.4; 1970, c. 40, § 25-239; 1972, c. 738; 1989, c. 714; 2000, c. 851; 2003, c. 940.)

Cross references. - As to tenant relocation payments in building rehabilitation cases, see § 15.2-737 .

As to payment for conversion condominiums, see § 55.1-1982 .

As to cooperative containing conversion buildings, see § 55.1-2164 .

CASE NOTES

Former § 25-239 (see now §§ 25.1-406 to 25.1-408 ) implies that the displaced person must seek payment of benefits. Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984) (decided under prior law).

§ 25.1-408. Optional payment for persons displaced from a place of business or farm operation.

Any displaced person eligible for payments under § 25.1-406 who is displaced from his place of business or farm operation and who is eligible under criteria established by the state agency may elect to accept the payment authorized by this section in lieu of the payment authorized by § 25.1-406 . Such payment shall consist of a fixed payment in an amount to be determined according to criteria established by the state agency, except that such payment shall not be less than $1,000 nor more than $75,000. A person whose sole business at the displacement site is the rental of such property to others shall not qualify for a payment under this section. The acceptance of the payment authorized by this section shall be in lieu of any payment under § 25.1-406 .

(Code 1950, §§ 33-75.04, 33.1-132.4; 1970, c. 40, § 25-239; 1972, c. 738; 1989, c. 714; 2000, c. 851; 2003, c. 940; 2006, c. 452.)

The 2006 amendments. - The 2006 amendment by c. 452 substituted "$75,000" for "$50,000" in the second sentence.

CASE NOTES

Former § 25-239 (see now §§ 25.1-406 to 25.1-408 ) implies that the displaced person must seek payment of benefits. Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984) (decided under prior law).

§ 25.1-409. Replacement housing for homeowners.

  1. In addition to payments otherwise authorized by this chapter, the state agency shall make an additional payment not to exceed $31,000 to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for not less than 90 days before the initiation of negotiations for the acquisition of the property. Such additional payment shall include the following elements:
    1. The amount, if any, that when added to the acquisition cost of the dwelling acquired by the state agency, equals the reasonable cost of a comparable replacement dwelling;
    2. The amount, if any, that will compensate the displaced person for any increased interest costs and other debt service costs that such person is required to pay for financing the acquisition of any comparable replacement dwelling. The amount for any increased interest or debt service costs shall be (i) determined in accordance with the criteria established by the state agency and (ii) paid only if the dwelling acquired by the state agency was encumbered by a bona fide mortgage that was a valid lien on such dwelling for not less than 180 days immediately prior to the initiation of negotiations for the acquisition of such dwelling; and
    3. Reasonable expenses incurred by such displaced person for evidence of title, recording fees, and other closing costs incident to the purchase of the comparable replacement dwelling, but not including prepaid expenses.
  2. The additional payment authorized by this section shall be made only to such a displaced person who purchases and occupies a decent, safe, and sanitary replacement dwelling not later than the end of the one-year period beginning on the later of (i) the date on which he receives final payment of all costs for the acquired dwelling or (ii) the date on which the state agency obligation under § 25.1-414 is met. However, the state agency may extend such period for good cause. If such period is extended, the payment under this section shall be based on the cost of relocating the person to a comparable replacement dwelling within one year of such date. (Code 1950, §§ 33-75.05, 33-75.06, 33.1-132.5, 33.1-132.6; 1970, c. 40, § 25-240; 1972, c. 738; 1989, c. 714; 2003, c. 940; 2014, c. 218.)

The 2014 amendments. - The 2014 amendment by c. 218, effective October 1, 2014, substituted "$31,000" for "$22,500", "90" for "180" and "before" for "prior to" in the first sentence of subsection A.

§ 25.1-410. Replacement housing for tenants and certain homeowners.

  1. In addition to amounts otherwise authorized by this article, a state agency shall make a payment to or for any displaced person displaced from any dwelling not eligible to receive a payment under § 25.1-409 which dwelling was actually and lawfully occupied by such displaced person for not less than 90 days immediately prior to (i) the initiation of negotiations for acquisition of the dwelling or (ii) if the displacement is not a direct result of acquisition, such other event as the state agency shall prescribe. Such payment shall consist of the amount necessary to enable such displaced person to lease or rent, for a period not to exceed 42 months, a comparable replacement dwelling, but not to exceed $7,200. At the discretion of the state agency, a payment under this subsection may be made in periodic installments. Computation of a payment under this subsection to a low-income displaced person for a comparable replacement dwelling shall take into account such person's income.
  2. Any person eligible for a payment under subsection A may elect to apply such payment to a down payment on, and other incidental expenses pursuant to, the purchase of a decent, safe, and sanitary replacement dwelling. Any such person may, at the discretion of the state agency, be eligible under this subsection for the maximum payment allowed under subsection A.

    (1972, c. 738, § 25-241; 1989, c. 714; 2003, c. 940; 2011, cc. 117, 190; 2014, c. 218..)

Editor's note. - Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and in subsection A, inserted "state" in clause (ii) of the first sentence and in the next-to-last sentence.

The 2014 amendments. - The 2014 amendment by c. 218, effective October 1, 2014, substituted "$7,200" for "$5,250" in subsection A and deleted "except that if the displaced homeowner has owned and occupied the dwelling from which he is displaced for at least 90 days but not more than 180 days immediately prior to the initiation of negotiations for the acquisition of such dwelling, such payment shall not exceed the payment such person would otherwise have received under subsection A of § 25.1-409 had the person owned and occupied the displacement dwelling 180 days immediately prior to the initiation of such negotiations" from the end of subsection B.

§ 25.1-411. Relocation planning, assistance coordination, and advisory services.

  1. Programs or projects undertaken by a state agency shall be planned in a manner that (i) recognizes, at an early stage in the planning of such programs or projects and before the commencement of any actions that will cause displacements, the problems associated with the displacement of individuals, families, businesses, and farm operations, and (ii) provides for the resolution of such problems in order to minimize adverse impacts on displaced persons and to expedite program or project advancement and completion.
  2. The state agency shall ensure that the relocation assistance advisory services described in subsection C are made available to all persons displaced by the state agency. If the state agency determines that any person occupying property immediately adjacent to the real property acquired is caused substantial economic injury because of the acquisition, it may offer such person relocation advisory services under such program.
  3. Each relocation assistance advisory program required by subsections A and B shall include such measures, facilities, or services as may be necessary or appropriate in order to:
    1. Determine, and make timely recommendations on, the need and preferences, if any, of displaced persons for relocation assistance;
    2. Provide current and continuing information on the availability, sales prices, and rental charges of comparable replacement dwellings for displaced homeowners and tenants and suitable locations for businesses and farm operations;
    3. Assure that a person shall not be required to move from a dwelling unless the person has had a reasonable opportunity to relocate to a comparable replacement dwelling, except in the case of (i) a major disaster declared by the Governor; (ii) a national emergency declared by the President of the United States; or (iii) any other emergency that requires the person to move immediately from the dwelling because continued occupancy of such dwelling by such person constitutes a substantial danger to the health or safety of such person;
    4. Assist a person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location;
    5. Supply information concerning federal and state housing programs, disaster loan programs, and other federal or state programs offering assistance to displaced persons; and
    6. Provide other advisory services to displaced persons in order to minimize hardships to such persons in adjusting to relocation.
  4. The head of a state agency shall coordinate the relocation activities performed by the state agency with other project activities and other planned or proposed governmental actions in the community or nearby areas that may affect the efficient and effective delivery of relocation assistance and related services.

    (Code 1950, §§ 33-75.03, 33.1-132.3; 1970, c. 40, § 25-242; 1972, c. 738; 1989, c. 714; 2003, c. 940; 2011, cc. 117, 190.)

Editor's note. - Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and substituted "the state agency" for "such agency" in the first sentence in subsection B and in subsection D.

§ 25.1-412. Administration of relocation assistance programs.

In order to prevent unnecessary expense and duplication of functions, and to promote uniform and effective administration of relocation assistance programs for displaced persons, a state agency may enter into contracts with any person for services in connection with such programs, or may carry out its functions under this chapter through any federal or state agency or instrumentality having an established organization for conducting relocation assistance programs.

(Code 1950, §§ 33-75.03, 33.1-132.3; 1970, c. 40, § 25-243; 1972, c. 738; 2003, c. 940.)

§ 25.1-413. Payments to certain persons displaced as the result of certain code enforcement activities.

Notwithstanding any other provision of this article, the governing body of a locality shall be authorized to make payments to any displaced person who is displaced by nonfederally assisted housing, plumbing, building, electrical, elevator, fire, food and health and sanitation code enforcement activities, in its discretion either (i) in amounts not exceeding the amounts authorized by the provisions of this chapter or (ii) in such lesser amounts as it may determine. Localities may adopt policies and procedures for payments to be made to persons displaced by such nonfederally assisted programs.

(1972, c. 738, § 25-245; 1973, c. 426; 2003, c. 940.)

§ 25.1-414. Authority of state agency where replacement housing not available; requiring person to move.

  1. If a program or project undertaken by a state agency cannot proceed to actual construction on a timely basis because comparable replacement dwellings are not available, and the state agency determines that such dwellings cannot otherwise be made available, the state agency may take such action as is necessary or appropriate to provide such dwellings by use of funds authorized for such project. The state agency may use this section to exceed the maximum amounts that may be paid under §§ 25.1-409 and 25.1-410 on a case-by-case basis for good cause as determined in accordance with such regulations as the state agency shall issue.
  2. No person shall be required to move from his dwelling on account of any project, unless the head of the state agency is satisfied that comparable replacement housing is available to such person.

    (1972, c. 738, § 25-247; 1989, c. 714; 2003, c. 940; 2011, cc. 117, 190.)

Editor's note. - Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and substituted "the state agency" for "such agency" in the first sentence in subsection A.

§ 25.1-415. Adjustments to certain benefit limits.

The monetary limits provided for in §§ 25.1-406 , 25.1-408 , 25.1-409 , and 25.1-410 shall be adjusted to conform to future revisions of corresponding monetary benefits under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646).

(1981, c. 149, § 25-247.1; 2003, c. 940.)

Cross references. - As to tenant relocation payments in building rehabilitation cases, see § 15.2-737 .

As to payment for conversion condominiums, see § 55.1-1982 .

As to cooperative containing conversion buildings, see § 55.1-2164 .

Editor's note. - For the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, referred to in this section, see generally in 42 U.S.C.S. § 4601 et seq.

§ 25.1-416. Application of article.

The provisions of this article shall apply for the benefit of (i) owners and (ii) other persons who are actually and lawfully occupying the real property to be acquired and who have been occupants thereof for at least 90 days prior to the initiation of negotiations for acquisition.

(1972, c. 738, § 25-236; 1979, c. 235; 2000, c. 851; 2003, c. 940.)

Article 3. Real Property Acquisition Policies.

§ 25.1-417. General provisions for conduct of acquisition.

  1. If a state agency acquires real property in connection with any programs or projects, such acquisition shall be conducted, to the greatest extent practicable, in accordance with the following provisions:
    1. The state agency shall make every reasonable effort to acquire expeditiously real property by negotiation.
    2. Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property; however, the requirements of this subdivision shall not apply if the state agency's official who is responsible for the acquisition determines that the value of the property being acquired is less than $25,000, based on assessment records or other objective evidence. Whenever the value of the property being acquired is determined to be between $10,000 and $25,000, the state agency, at the time an offer is made initiating negotiations, shall disclose to the owner or his designated representative that the offer has been established based on assessment records or other objective evidence and not an appraisal and that he may request that an appraisal be prepared and used as the basis for establishing just compensation pursuant to this section.
    3. Before making an offer to acquire or initiating any related negotiations for real property, the state agency shall establish an amount which it believes to be just compensation therefor and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the state agency's approved appraisal of the fair market value of such property, if such an appraisal is required, or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, shall be disregarded in determining the compensation for the property. The state agency concerned shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation and, if an appraisal is required or obtained, such written statement and summary shall include a complete copy of all appraisals of the real property to be acquired that the state agency obtained prior to making an offer to acquire or initiating any related negotiations for the real property. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
    4. No owner shall be required to surrender possession of real property before the state agency pays the agreed purchase price, or deposits with the state court in accordance with applicable law, for the benefit of the owner, (i) an amount not less than the state agency's approved appraisal of the fair market value of such property, if such an appraisal is required, or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater, or (ii) the amount of the award of compensation in the condemnation proceeding for such property.
    5. The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling, assuming a replacement dwelling will be available, or to move his business or farm operation, without at least 90-days' written notice from the state agency, of the date by which such move is required.
    6. If the state agency permits an owner or tenant to occupy the real property acquired on a rental basis for a short term for a period subject to termination by the state agency on a short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.
    7. In no event shall the state agency either advance the time of condemnation, or defer negotiations or condemnation and the deposit of funds in court for the use of the owner, or take any other action coercive in nature, in order to compel an agreement on the price to be paid for the property.
    8. If any interest in real property is to be acquired by exercise of the power of eminent domain, the state agency shall institute formal condemnation proceedings. No state agency shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.
    9. If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the state agency concerned shall offer to acquire the entire property.
    10. A person whose real property is being acquired in accordance with this article may, after the person has been fully informed of his right to receive just compensation for such property, donate such property, and part thereof, any interest therein, or any compensation paid therefor to a state agency, as such person shall determine.
  2. The provisions of this section create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.
  3. Nothing in this section shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

    (1972, c. 738, §§ 25-235.1, 25-248; 2000, cc. 851, 1029; 2001, c. 260; 2003, c. 940; 2011, cc. 117, 190, 335; 2013, c. 764.)

Editor's note. - Acts 2011, cc. 117 and 190, cl. 2 provides: "That the provisions of this act shall not apply to the acquisition of real property by a railroad, public service corporation, municipal corporation, local governmental unit, or political subdivision of the Commonwealth or any department, agency, or instrumentality thereof, or two or more of the aforementioned, that is (i) the subject of a certificate recorded prior to July 1, 2011, in the clerk's office where deeds are recorded; (ii) the subject of a petition for condemnation filed prior to July 1, 2011; or (iii) required to construct a project funded by bonds approved for issuance by a locality prior to July 1, 2011."

The 2011 amendments. - The 2011 amendments by cc. 117 and 190 are identical, and in subdivision A 3, in the first sentence, inserted "making an offer to acquire or" and "any related," in the second and fourth sentences, inserted "state," and in the fourth sentence, deleted "together with a copy of the agency's approved appraisal of the fair market value of such property upon which the agency has based the amount offered for the property, if such an appraisal is required" from the end and added the language beginning "and, if an appraisal is required or obtained."

The 2011 amendment by c. 335, in subdivision A 2, substituted "$25,000" for $10,000" in the first sentence and added the second sentence.

The 2013 amendments. - The 2013 amendment by c. 764 added "or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater" at the end of the second sentence of subdivision A 3 and in clause (i) of subdivision A 4; and added subsection C.

CASE NOTES

Procedural requirements met. - Trial court erred in holding that the first appraisal of the real property at issue was an inadmissible offer to settle, that title vested in the Commonwealth, and that the landowners were to repay an alleged overpayment because the appraisal was given to the landowners before any offer to purchase was made and/or settlement negotiations were initiated, the landowners could introduce evidence of the higher, precondemnation valuation to rebut a second lower valuation, evidence of any amount deposited with the trial court with a Certificate of Take was inadmissible, and there was no statutory bar to the admission of the presettlement appraisal. Ramsey v. Comm'r of Hwys, 289 Va. 490 , 770 S.E.2d 487, 2015 Va. LEXIS 43 (2015).

Reduction in value to property residue. - Award to a landowner in an eminent domain proceeding under § 25.1-205 was affirmed, because loss of visibility of a store from a road following the taking caused damage to the residue of the property which was compensible pursuant to subdivision A 3 of § 25.1-417 , and the Commissioner of an agency failed to show that the damages awarded to the landowner were excessive. Commonwealth Transp. Comm'r v. Target Corp., 274 Va. 341 , 650 S.E.2d 92, 2007 Va. LEXIS 111 (2007).

CIRCUIT COURT OPINIONS

Property must be used for public purpose. - County could not take the landowner's entire property, only the portion to be used for a water reservoir, the public purpose for which the county was exercising its power of eminent domain; the county's own evidence established that the 1.85-acre residue was not being taken for the reservoir nor was it accessory to or in conjunction with the reservoir project rather, the taking was an after-thought unrelated to a public purpose. Spotsylvania County v. Mineral Springs Homeowners Ass'n, 62 Va. Cir. 319, 2003 Va. Cir. LEXIS 114 (Spotsylvania County 2003).

Procedural requirements met. - Because a county properly alleged that the owners' property was appraised prior to the initiation of negotiations, because the owners were given the opportunity to accompany the appraiser during the inspection, and because the appraisal complied with subsection C of § 25.1-204 and subdivision A 2 of § 25.1-417 , the owners' demurrers to the condemnation of their property were overruled. Board v. Royal, 75 Va. Cir. 460, 2007 Va. Cir. LEXIS 305 (Campbell County 2007).

Housing authority made a bona fide offer for an owner's property because it complied with the requirements of § 25.1-204 ; the authority, through its professional appraiser, made a bona fide offer to purchase the property, and the appraisal of the property was to be the basis of the authority's offer. Norfolk Redevelopment & Hous. Auth. v. Norva Props., L.C., 84 Va. Cir. 45, 2011 Va. Cir. LEXIS 269 (Norfolk Dec. 7, 2011).

Adequacy of appraisal. - Housing authority, for the purpose of ruling on the circuit court's jurisdiction, made a bona fide offer to a real property owner, because the housing authority complied with the requirements of subsection A of § 25.1-204 , and any dispute regarding the manner by which the property was appraised was to be determined at the just compensation phase of the proceeding. However, accepting the facts asserted by the owners as true for the purpose of ruling on housing authority's motion to strike the owners' objections and affirmative defenses, the court could not hold that the housing authority made a bona fide offer to the owner, because the appraisal upon which the bona fide offer was based allegedly did not appraise the entire property sought and the appraisal allegedly was not conducted using accepted appraisal methodology. Norfolk Redevelopment & Hous. Auth. v. Cent. Radio, Inc., 82 Va. Cir. 240, 2011 Va. Cir. LEXIS 85 (Norfolk Feb. 17, 2011).

Property owner not provided with private cause of action. - Statutory requirements ensure that a condemnor proceeds to acquire a landowner's property in a manner that will minimize costs and frustration to the property owner. However, the statutory requirements do not provide the landowner with a private cause of action for failure to comply with the requirements. City of Chesapeake v. Clear Sky Car Wash, L.L.C., 89 Va. Cir. 27, 2014 Va. Cir. LEXIS 145 (Chesapeake Mar. 11, 2014).

§ 25.1-417.1.

Expired.

Editor's note. - Acts 2007, c. 895, cl. 5, provided: "That the provisions of § 25.1-417.1 shall expire on July 1, 2009."

Former § 25.1-417.1 was enacted by Acts 2007, c. 895, and expired by the terms of Acts 2007, c. 895, cl. 5, on July 1, 2009.

§ 25.1-418. Reimbursement of owner for certain expenses.

Any state agency acquiring real property in connection with any program or project, as soon as practicable after the first to occur of the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, shall reimburse the owner, to the extent the state agency deems fair and reasonable, for expenses he necessarily incurred for (i) recording fees, transfer taxes and similar expenses incidental to conveying such real property to the state agency; (ii) penalty costs for prepayment for any preexisting recorded mortgage entered into in good faith encumbering such real property; and (iii) the pro rata portion of real property taxes paid that are allocable to a period subsequent to the first to occur of the date of vesting title in the state agency or the effective date of possession of such real property by the state agency.

(Code 1950, §§ 33-75.06, 33.1-132.6; 1970, c. 40, § 25-249; 1972, c. 738; 2003, c. 940.)

OPINIONS OF THE ATTORNEY GENERAL

Grantor's tax. - Grantor's tax may not be assessed on a deed conveying real property from a private bank to the Commonwealth, following Virginia Department of Transportation's purchase of the property for public use on a highway improvement project. See opinion of Attorney General to The Honorable Rebecca P. Hogan, Clerk of the Frederick County Circuit Court, No. 16-010, 2017 Va. AG LEXIS 5 (3/9/17).

§ 25.1-419. Reimbursement of owner for costs when taking is abandoned or denied.

The court in which a condemnation proceeding is instituted by a state agency to acquire real property by condemnation shall award the owner of any right, title, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if (i) the final judgment is that the state agency cannot acquire the real property by condemnation or (ii) the taking is abandoned by the state agency, in full or in part. The award of such sums shall be paid by the state agency that sought to condemn the property.

(1972, c. 738, § 25-250; 2003, c. 940; 2019, c. 788.)

Editor's note. - Acts 2019, c. 788, cl. 2 provides: "That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019."

The 2019 amendments. - The 2019 amendment by c. 788 substituted "in which" for "having jurisdiction of"; inserted "is" following "proceeding"; substituted "taking" for "proceeding"; inserted "in full or in part" following "state agency"; and made stylistic changes. For applicability, see Editor's note.

Applied in Va. Elec. & Power Co. v. Hylton, 292 Va. 92 , 787 S.E.2d 106, 2016 Va. LEXIS 78 (2016).

CIRCUIT COURT OPINIONS

Alleged ethical violations not grounds for reducing attorney's fee award. - Where property owners prevailed in a condemnation action, even assuming that a referral fee arrangement involving the owner's attorneys violated Va. Sup. Ct. R. pt. 6, § II, R. 1.5(e), this was not grounds for reducing the fees the attorneys were entitled to under § 25.1-419 . Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 72 Va. Cir. 464, 2007 Va. Cir. LEXIS 162 (Norfolk 2007).

Failure to prevail on every defense not basis for reducing attorney's fee award. - Property owner that prevailed in a condemnation proceeding sought attorney fees under § 25.1-419 . As the owner's attorneys obtained "substantial relief" in the case, it was not appropriate to reduce their reimbursement simply because every defense that the attorneys employed was not successful. Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 72 Va. Cir. 464, 2007 Va. Cir. LEXIS 162 (Norfolk 2007).

Fees deemed excessive. - Where a property owner prevailed in a condemnation proceeding, to the extent its attorneys billed in quarter-hour rather than in tenth-of-an-hour increments, the fees awarded them under § 25.1-419 were reduced. Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 72 Va. Cir. 464, 2007 Va. Cir. LEXIS 162 (Norfolk 2007).

Where a property owner prevailed in a condemnation proceeding, as some services provided by its counsel - such as depositions attended by more than one attorney - were duplicative and unnecessary, the attorney's fees awarded under § 25.1-419 were reduced accordingly. Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 72 Va. Cir. 464, 2007 Va. Cir. LEXIS 162 (Norfolk 2007).

Property owner that prevailed in a condemnation proceeding sought attorney's fees under § 25.1-419 . While lead counsel's hourly rates of $450 and $350 were reasonable based on their long experience and excellent reputation, a recently licensed attorney's hourly rate of $250 was deemed excessive and was reduced to $150. Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 72 Va. Cir. 464, 2007 Va. Cir. LEXIS 162 (Norfolk 2007).

§ 25.1-420. Reimbursement of owner for costs incurred in inverse condemnation proceeding.

If a declaratory judgment proceeding is instituted pursuant to § 8.01-187 by the owner of any right, title or interest in real property because of use of his property in any program or project undertaken by a state agency, and either (i) the court renders a judgment for the plaintiff in such proceeding and awards compensation for the damaging or taking of property or (ii) the Attorney General effects a settlement of any such proceeding in which the Commonwealth is a party, the court or Attorney General, as appropriate, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the Attorney General, as the case may be, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding.

(1972, c. 738, § 25-251; 2003, c. 940; 2017, c. 735.)

Editor's note. - Acts 2017, c. 735, cl. 2 provides: "That the provisions of this act shall not apply to declaratory judgment proceedings filed prior to July 1, 2017."

The 2017 amendments. - The 2017 amendment by c. 735 inserted "damaging or" in clause (i). For applicability, see Editor's note.

CASE NOTES

Diminution in value not sufficient to establish taking. - In inverse condemnation actions, as property owners did not allege that the presence of a public utility's transmission lines interfered with their ability to exercise any specific property right, but that the transmission lines rendered their land less valuable as residential property; they did not state a claim for a "taking" under Va. Const. art. I, § 11. Byler v. Va. Elec. & Power Co., 284 Va. 501 , 731 S.E.2d 916, 2012 Va. LEXIS 167 (2012).

§ 25.1-421. Buildings, structures and other improvements on real property.

  1. To the greatest extent practicable, where an interest in real property is acquired by a state agency, the state agency shall acquire an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and that are required to be removed from such real property so acquired and that are determined to be adversely affected by the use to which such real property will be put.
  2. For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as provided in subsection A, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired, notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building, structure or improvement at the expiration of his term. In such event, the tenant shall be paid an amount equal to the greater of (i) the fair market value that such building, structure or improvement contributes to the fair market value of the real property to be acquired or (ii) the fair market value of such building, structure or improvement to be removed from the real property.
  3. Payment for such building, structures or improvements as set forth in subsections A and B shall not result in duplication of any payments otherwise authorized by other laws of the Commonwealth. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer and release all his right, title and interest in and to such improvements. Nothing with regard to such acquisition of buildings, structures or other improvements shall be construed to deprive the tenant of any rights to reject payment under this section and to obtain payment for such property interests in accordance with other laws of the Commonwealth.
  4. The provisions of this section create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.

    (1972, c. 738, §§ 25-235.1, 25-252; 2003, c. 940.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 97.

CASE NOTES

Structures attached to the real estate but owned by the lessee are realty. - As between the condemnor and lessee, structures attached to the condemned real estate but owned by the lessee are realty. This is the case even though, as between the landlord and lessee, the structures may be personalty. Lamar Corp. v. City of Richmond, 241 Va. 346 , 402 S.E.2d 31 (1991) (decided under prior law).

Title to the structures passes to the condemnor as an incident of the entire taking; the lessee becomes entitled to a share of the total award and to a subsequent proceeding to determine the appropriate amount of that share. Lamar Corp. v. City of Richmond, 241 Va. 346 , 402 S.E.2d 31 (1991) (decided under prior law).

The value of the structures is included in the total award made for the freehold, even though the lessee has, by the terms of his lease, expressly reserved the right to remove them during or at the end of his term. Lamar Corp. v. City of Richmond, 241 Va. 346 , 402 S.E.2d 31 (1991) (decided under prior law).

Evidence of valuation. - Trial court erred in excluding lessee's expert testimony regarding valuation of billboard; absent the lessee's evidence or any other evidence attributing value to the billboard structure, the total determination of just compensation for the condemned property was erroneous as a matter of law, because the award did not include compensation for the fair market value of the billboard structure. Lamar Corp. v. Commonwealth Transp. Comm'r of Virginia, 262 Va. 375 , 552 S.E.2d 61, 2001 Va. LEXIS 100 (2001) (decided under prior law).

CIRCUIT COURT OPINIONS

Appraisal covered all property sought to be condemned. - Appraisal covered all of the property sought to be condemned because the property owner intended to take all the plastic manufacturing equipment with it; the owner's officer testified that the owner would be relocating the equipment to any future business location, and his testimony was an unequivocal expression of the owner's intent to take all the equipment located within the property, whether affixed to the property or not, to a new location. Norfolk Redevelopment & Hous. Auth. v. Norva Props., L.C., 84 Va. Cir. 45, 2011 Va. Cir. LEXIS 269 (Norfolk Dec. 7, 2011).