1.8 Possession “pendente Lite”

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

1.8 POSSESSION "PENDENTE LITE"

1.801 Entry for Survey, Appraisal, and Tests. ²⁴⁹ Section 25.1-203 of the Virginia Code provides general authority for localities and any condemnor authorized to use the quick-take procedures to enter property in or out of the jurisdiction to make tests, surveys, borings, appraisals, or examinations to determine suitability for its intended use and whether the property should be acquired. Prior to entering the property without the written permission of the property owner, the condemnor must request permission to inspect the property and give the owner notice of intent to enter.

The request for permission must be sent by certified mail, return receipt requested, guaranteed overnight delivery, or otherwise delivered to the owner in person with proof of delivery. The request must be made at least 15 days before the proposed date of entry. The request is deemed made on the date of mailing, if mailed, and otherwise on the date of delivery. The request for permission must include the date the inspection is proposed to be made, the name of the entity entering the property, the purpose of the entry, and any actions to be taken.

The notice of intent to enter must also be sent no less than 15 days prior to entry by certified mail and must also be either (i) posted at the main entryway or entrance of the property; (ii) delivered by guaranteed overnight mail; or (iii) delivered in person with evidence of receipt. The notice of intent to enter must include a copy of the request for permission. Anyone entering the property must carry identification and provide it if requested.

If the owner obtains a judgment for actual damages caused by the entry, a court may also award attorney fees, court costs, and the fees for up to three testifying experts if it finds that the condemnor maliciously, willfully, or recklessly damaged the property or if the amount awarded is 30 percent or

[Page 44]

more greater than the petitioner's final written offer of reimbursement for damages.

1.802 Entry After Filing Petition. A condemnor may enter property to construct improvements after the filing of the petition so long as the condemnor complies with statutory notice and (i) an emergency exists and (ii) the interests of the owners will be protected by paying into the court the offer amount. ²⁵⁰

1.803 "Quick-Take" or Use of Certificate to Transfer Defeasible Title. Section 15.2-1904 of the Virginia Code provides for quick-take "right of entry" authority for localities for certain specified public purposes using the certificate of taking or certificate of deposit authority set out in Chapter 3 of Title 25.1. ²⁵¹ Section 15.2-1905 provides that counties may only exercise the quick-take authority upon compliance with the following procedures:

1.

Adoption of a resolution or ordinance by the condemnor after holding a public hearing specifying the date of entry, or

2.

Notification by proper mail to the property owner of the condemnor's intention to enter the property to construct improvements including notice that the property owner has 30 days to contest the right of entry. The issue in such a case is whether circumstances justify entry. If no such necessity exists and the entry would create an undue hardship on the property owner, the county will be required to acquire the property without a right of entry.

In either approach under Section 15.2-1905, the county must:

1. Institute the condemnation action 120 days after completion of the work. The statute does

...