Section 11.6 Immediate Possession

• Jurisdiction: Arizona

Under A.R.S. § 12-1116, the condemning entity may apply for an order granting immediate possession of the property sought to be condemned. The order may be issued after a hearing, properly noticed, a finding by the court that the use for which the property is being condemned is a necessary use, and a deposit of money or a bond with the clerk of the court or the state treasurer. The parties may stipulate as to the amount of the bond, or the amount may be set by the court based on evidence adduced at the hearing of the probable amount of damages and the amount of unpaid property taxes that have been levied (including penalties and interest) as of the date of immediate possession.

The only issues, under A.R.S. § 12-1116, to be determined at a hearing on immediate possession are necessity and probable damages. Failure to raise the issue of an incorrect characterization of the interest being condemned does not constitute a waiver.

Town of Paradise Valley v. Laughlin, 174 Ariz. 484, 851 P.2d 109 (App. 1992)

An early immediate possession statute was held unconstitutional because it failed to provide for compensation or damages if the condemning authority abandoned the action.

De Hansen v. District Court, 11 Ariz. 379, 94 P. 1125 (1908) (one who may be deprived of property must be secure, not only as to payment of damages in the event of the permanent taking, but as to compensation for losses for a temporary taking as well)

The provisions of A.R.S. § 12-1116(A), which at that time permitted immediate possession by a condemnor upon deposit of cash into court in an amount twice...