property transactions Flashcards
power of eminent domain
Government may exercise power of eminent domain by condemning any land, building, or personal property, including any interest of any individual or corporation, for PUBLIC USE whenever:
(1) public need for the property
and
(2) condemner, having made good faith offer of purchase, cannot agree with the owner as to the compensation to be paid to the owner
condemnation may only be for projects that are “public uses” - what are public uses?
(1) use by public
(2) public facilities like airports
(3) use by utility or railroad
(4) eliminate blight that has become public safety issue
or
(5) where owner agrees to acquisition
NOT: acquiring land to turn it into a business park for private companies in order to create jobs and add to to tax revenue for the local government
who has burden of showing that planned use is public
government entity condemning the property
no presumption that purpose is public
limitations on power of eminent domain
(1) no taking more than necessary to achieve public purpose
(2) EXCEPT where property is taken for use by utility or railroad or water/sewer etc.,
(a) public interest must predominate
(b) primary purposes cannot be financial gain or to aid private business or create private benefit
(c) primary purpose cannot be to create increase in tax base or tax revenues or create more jobs or for economic development in general
[ For example, condemning farm land to create a “business park” where private companies could grow, employing local residents and increasing local tax revenues, is not permissible]
condemnation proceedings and award
PROCEEDING
(1) when owner and government do not agree after condemner’s “good faith offer to purchase”, you must bring court proceeding in the CIRCUIT court where property is located
(2) fact finders are either jurors or commissioners - selected like civil jurors
AWARD
(1) “just compensation” must be given, which shall be no less than the value of the property taken + lost profits and value of lost access (FMV)
(2) lost access =
— material impairment of access to parcel by route of residue parcel still owned by owner
– loss in value of remaining property
– NOT included: access consequences that affect entire community
(3) lost profits =
— loss of profits suffered for a period of up to 3 years as a result of the taking
– alleged with reasonable certainty
– must be caused by the taking
– cannot have opp to reasonably relocate to avoid loss
– provide 3 ears of tax returns prior to valuation date
(4) loss of development rights may be compensable
(5) if landowner says that now the residue of the parcel has lost value, must show what FMV of the remaining land was the day before the taking compared to the day after
indirect takings of property
WHAT IT IS: damaging it rendering it useless without formal condemnation
OWNER’S ACTION: “inverse condemnation claim” to obtain declaratory judgment or damage s
no sovereign immunity over inverse condemnation claims because they are based on “implied contract” with the citizen
constitutional underpinnings of the VA constitution’s takings clause
“A county which constructs a storm drainage system that frequently overflows onto private property, making building on the land im- possible. Action to recover for the value of the property interests affected is allowed.”
WHAT DOES P HAVE TO SHOW:
(i) the property owner owns private property or has some private property right,
(ii) the property or a right connected to that property has been taken or damaged by the government,
(iii) the taking or damaging was for “public use,” and, (iv) The government or condemning authority failed to pay just compensation to the property owner.
adverse possession
Municipalities may obtain title to property through adverse posses- sion by showing an adverse holding that is hostile, actual, open, notorious, exclusive, and continuous.
but individual likely cannot obtain government property by adverse possession
