1.5 Form and Content of the Petition

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

1.5 FORM AND CONTENT OF THE PETITION ²⁰¹

Since any ambiguities in pleadings are resolved against the condemnor, care should be exercised in drafting the petition. ²⁰²

1.501 Designation of Property as Defendant. Because of the in rem nature of condemnation, the property to be condemned should be designated as a defendant in the caption by kind, quantity and location. The

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person or entity vested with the power of eminent domain must be listed as the plaintiff.

1.502 Description and Plat of Property. The description of the property to be taken must be sufficient for its identification, and a plat or drawing sufficient to allow the landowner to understand the nature of the work and the effect of the construction and improvements must be attached to the petition if only a portion of a parcel is being acquired. ²⁰³ However, the condemnor need not describe and file a plat of the "residue" of the land taken or other property owned by the landowner that may be damaged. ²⁰⁴ A clearly defined plat, even though error exists in the metes and bounds description, constitutes sufficient description under section 25.1-206 if the property owners are not misled. ²⁰⁵ A description of property need not identify applicable restrictive covenants (in this case a requirement to install underground utilities) which the landowner believed "enhanced" the value of the property. ²⁰⁶

The condemnor may amend a petition to change the interest from fee simple to an easement and also amend the amount of land to be taken, but only if the amendment reduces the amount of land. ²⁰⁷ A certificate of take may be altered or reformed, if this does not add to the area of the taking. ²⁰⁸

The condemnor should consider appending to the petition a copy of the easement agreement when acquiring an easement or other limited interest in property such as a lease so that the landowner cannot complain that he or she did not know the exact "bundle of rights" to be acquired by the condemnor in order to allow an appraisal of the fair market value of the take by the landowner. An easement for electricity is "apportionable" (allowing other companies to install lines) even though the instrument describing the rights

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acquired in the eminent domain proceeding did not contain broad "apportion-ability" language. ²⁰⁹

Reference to a plat without height elevations is insufficient to describe an avigation easement. ²¹⁰

1.503 Multiple Parcels Permitted. More than one parcel may be included in the same petition, even though taken from different owners or for different purposes. ²¹¹ On motion of any party, however, severance of the cases and separate trials may be ordered "in furtherance of convenience or to avoid prejudice."

1.504 Identification of Owners. As to each parcel, all owners, holders "of some interest therein" ascertainable "by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired," and those whose names "have otherwise been learned" must be named as parties. ²¹² An "owner" is defined in section 25.1-100 of the Virginia Code as any person owning property 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. This definition of the term "owner" does not affect in any way the valuation of the property. The definition of "owner" does 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. ²¹³ Although trustees are not "necessary" parties, they are still likely to be considered "proper parties." If names are not known, they are designated "Unknown Owners" in the petition. ²¹⁴ Since noteholders under deeds of trust and other lienholders are not "owners" given notice under the condemnation statutes, any rights to distribution of an award do not accrue until an award is paid into court. ²¹⁵

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A tenant under a lease with a term of 12 months or longer may intervene and participate in the proceeding for the sole purpose of offering evidence of the value of the property being taken or damaged. Evidence of the value of the leasehold is not allowed. ²¹⁶

The Commissioner of Highways must also notify as "owners" any persons owning structures or improvements for which an outdoor advertising permit has been issued. ²¹⁷

Special terms and conditions in leases and deeds of trust may determine the relative financial rights and opportunities of landowners and lessees to participate in condemnation cases. ²¹⁸

Claimants of an interest in real estate to be condemned may intervene if a dispute exists as to the extent of the interest of any claimant, but disputes over ownership interests shall not delay the proceedings. The award will be held by the court for a commissioner in chancery to determine the amount of the appropriate shares. ²¹⁹

1.505 Required Statements. The following short and plain statements should be made in the petition: ²²⁰

1.	The authority for the taking, including the status of the condemnor and the statute under which it has the power of eminent domain;
2.	The necessity for the work or improvements to be made;
3.	The public uses for which the property is being taken;
4.	A description of the work or improvements to be made;

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5. In partial takings, or where other property is

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