Section 30 Increase of Award for Homestead or Heritage Value

• Library: Condemnation Practice 2009

When the legislature revised Chapter 523, RSMo, in 2006, it added two new concepts to the law of eminent domain. Those concepts are “heritage value” and “homestead taking.” Section 523.001(2) and (3), RSMo Supp. 2008. “Heritage value” is defined as “the value assigned to any real property, including but not limited to real property owned by a business enterprise with fewer than one hundred employees, that has been owned within the same family for fifty or more years, such value to be fifty percent of fair market value.” Section 523.001(2).

A “homestead taking” is defined as:

any taking of a dwelling owned by the property owner and functioning as the owner’s primary place of residence or any taking of the owner’s property within three hundred feet of the owner’s primary place of residence that prevents the owner from utilizing the property in substantially the same manner as it is currently being utilized.

Section 523.001(3).

Under § 523.039, RSMo Supp. 2008, the definitions are applied to the fair market value of the property to increase the amount of just compensation the owner is entitled to receive. Homestead takings get 125% of the fair market value. Section 523.039(2). If the taking involves a property owned by the same family for 50 or more years and the taking prevents the owner from utilizing the property “in substantially the same manner as it was currently being utilized on the day of the taking,” the owner gets 150% of fair market value. Section 523.039(3).

The calculation of the bump for heritage value or for a homestead taking in a total take is simple. The property owner gets 125% or 150% of fair market value, as the case may be.

In a partial taking, fair market value for the purpose of calculating the bump is defined to mean “the difference between the fair market value of the entire property immediately prior to the taking and the fair market value of the remaining or burdened property immediately after the taking.” Section 523.001(1). So in a partial taking, the commissioners or jury determines fair market value based on the before/after formula, and the court would then add 25% or 50% to the award depending on whether the case involved heritage value property or a homestead taking.

If property qualifies for both heritage value and as a homestead taking, the property owner is only entitled to claim heritage value—not both—because § 523.039 provides that just compensation shall be determined by using one of three statutory...