Passing of Title

Generally, in a condemnation action, title is vested in the condemnor when the condemnor either takes possession of the land or pays the condemnation award.  The time of determination of the amount of the condemnation award is not relevant for the passing of title.  In certain instances, title is passed upon the determination and payment of just compensation.  This is true since payment is a condition precedent to the right to acquire and use condemned land[i].  A condemnor is vested with the title of the property only after both a final order of condemnation and payment of the compensation awarded.  However, the condemnor’s title may relate back to the date on which the petition in case of proceedings under the Eminent Domain Act, or the report of commissioners under the Local Improvement Act, is filed.  Courts have held that the value in a condemnation proceeding is not determined and awarded until there is a verdict by a jury or court and an entry of a judgment on the verdict[ii].

A condemning authority possesses the right to obtain title to the land “according to the state of title as of the date of valuation and at the valuation of the land at that time, and interests which may be acquired thereafter in the land by another are subject to pending condemnation proceedings and are to be considered subordinate to the rights of the condemnor[iii].”

Courts have repeatedly held that title does not vest in the condemner until the determination and payment of just compensation[iv].  Just compensation is equal to the fair cash market value of the property for its highest and best use and the burden of proving the fair market value of the property falls on the condemnor[v].

Generally, possession of the private property is taken after trial and only then is the property deemed to be finally condemned[vi].

The mere filing of a condemnation action or a verdict in condemnation proceedings which merely fix a price or value does not vest an equitable title in the condemner.  Similarly, in cases where payment is required before divesting the landowner of the ownership or possession of the property, the taking does not occur until such compensation has been paid or tendered[vii].

Under federal law, the title to the property vests in the United States when the award of “just compensation” has been ascertained and paid.  In cases where the Government files a complaint in condemnation, title passes when the compensation award is paid in district court and the district court distributes it among those who owned the property at the time of condemnation[viii].

Under the Declaration of Taking Act, a condemnation proceeding is a two-step process involving the filing of a declaration of taking and of the deposit in the district court of the amount of the estimated compensation stated in said declaration.  Subsequent to this, title to the said lands in fee simple absolute or a lesser estate or interest shall vest in the government and said lands shall be deemed to be condemned and taken for the use of the United States[ix].  In the second step, the Act preserves the landowner’s right to just compensation for the taking of his/her property.  The condemnation of property pursuant to the Act vests an indefeasible title in the government.

Under the Model Eminent Domain Code, transfer of title is complete when a transfer order is entered after the judgment is paid.  However, the occupant of the property cannot be required to move from a dwelling or to move his or her business unless such person has been served a written notice by the condemnor at least 90 days before the date by which the move is required[x].

The passing of title under state quick-take statutes occurs immediately upon the filing of the complaint, declaration of taking, and the deposit of the estimated compensation[xi].

[i] City of Houston v. Texan Land and Cattle Co., 2004 WL 414117 (Tex. App. Houston 14th Dist. 2004).

[ii] Chicago Park Dist. v. Downey Coal Co., 1 Ill. 2d 54 (Ill. 1953).

[iii] Dep’t of Natural Res. v. Brauer, 339 Ill. App. 3d 723 (Ill. App. Ct. 2003).

[iv] Board of Junior College v. Carey, 43 Ill. 2d 82 (Ill. 1969).

[v] Department of Public Works & Bldgs. v. Oberlaender, 42 Ill. 2d 410 (Ill. 1969).

[vi] Bern-Shaw Ltd. P’ship v. Mayor & City Council, 377 Md. 277 (Md. 2003).

[vii] Lafontaine’s Heirs at Law v. Lafontaine’s Heirs at Law, 205 Md. 311 (Md. 1954).

[viii] Fed. R. Civ. P. 71A(j).

[ix] 40 U.S.C.S. § 258a.

[x] Model Eminent Domain Code § 205.

[xi] Nicoletti v. Allegheny County Airport Authority, 841 A.2d 156 (Pa. Commw. Ct. 2004).


Inside Passing of Title