Condemnation

Key Takeaways

• Condemnation is the legal proceeding that carries out eminent domain. Eminent domain is the power itself, and the two words are not interchangeable.
• A condemnation case asks the court to decide whether the use is really public, then fixes the just compensation the owner must be paid.
• In Washington, cities condemn under chapter 8.12 RCW, and RCW 8.12.100 requires the court to impanel a jury to ascertain the just compensation.
• Payment comes first in Washington: article I section 16 of the state constitution requires just compensation to be made, or paid into court for the owner, before property is taken or damaged.

What It Means

Condemnation is the court proceeding a government uses to take private property when the owner will not sell. The power standing behind it is Eminent Domain. Condemnation is how that power gets exercised, and keeping the two words apart is worth the effort, because both exam questions and real files turn on the distinction.

A condemnation case follows a shape. The condemning body authorizes the taking, files a petition describing the property and naming everyone who holds an interest in it, and serves those parties. The court first decides the legal question of whether the contemplated use is really public. If it is, the case moves to valuation, where the amount of Just Compensation is determined and entered as a judgment.

Everyone with a recorded interest belongs in that proceeding, not only the fee owner. A tenant's leasehold, a lender's lien, and an easement across the land are each interests in the same Real Property, so the award has to be divided among them. And the money moves before the government does. The award is paid, or paid into court for the owner, and only then does the condemnor take the property.

How It Works in Washington

In Washington the timing rule comes straight from article I, section 16 of the state constitution: no private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner. The same section makes the public use question a judicial one, decided without regard to any legislative assertion that the use is public, and provides that compensation is ascertained by a jury unless a jury is waived, as in other civil cases in courts of record.

Chapter 8.12 RCW, Eminent Domain by Cities, supplies the mechanics for a city project. RCW 8.12.030 authorizes cities and towns to condemn land for streets, alleys, bridges, drains, public squares, public buildings, and the other purposes it lists. RCW 8.12.040 covers the ordinance specifying the method of payment and RCW 8.12.050 the petition that opens the case. RCW 8.12.100 requires the court to impanel a jury to ascertain the just compensation to be paid for the property taken or damaged, and RCW 8.12.200 covers the judgment and payment of the award into court.

Washington also puts pressure on the government's offer. Under RCW 8.25.070, the court awards the condemnee reasonable attorney fees and expert witness fees if the condemnor made no written settlement offer at least thirty days before trial, or if the judgment exceeds the highest written settlement offer by ten percent or more. When an agency takes or damages property without ever filing a petition, the owner's remedy runs the opposite direction, as Inverse Condemnation.

Example

Kitsap Transit needs the rear portion of a lot owned by Hollis Bergstrom to build a bus layover bay. The lot is 100 feet by 80 feet, or 8,000 square feet, and the strip taken is the rear 25 feet by 80 feet, or 2,000 square feet, one quarter of the lot.

Hollis leases the building to a bakery on a lease with three years left to run. The agency offers $140,000 for the strip. Hollis says losing the loading area is worth more than that, the parties do not settle, and the agency files a condemnation petition naming Hollis, the bakery as tenant, and the credit union holding the lien. The court finds the transit use is public, and a jury returns a verdict of $186,000.

The award is paid into court and then divided by interest: $21,000 to the bakery for the value of its leasehold in the ground taken, and the remaining $165,000 to Hollis, out of which the credit union is paid to the extent its loan documents require. Because the $186,000 verdict exceeds the agency's $140,000 offer by about 33 percent, RCW 8.25.070 supports an award of Hollis's attorney and expert witness fees as well.

Common Mistakes and Exam Traps

• Condemnation is the proceeding and eminent domain is the power. When a question asks what the government files or what the court hears, the answer is condemnation.
• Inverse condemnation is brought by the owner, not by the government, when property was taken or damaged without any formal proceeding.
• Condemnation does not wipe out other interests for free. Tenants, lenders, and easement holders are parties, and the award is divided among the interests taken.
• In Washington, compensation is made or paid into court before the taking, so an answer that has the government taking possession first and paying afterward is wrong.