Oregon Eminent Domain Laws

In Oregon, if the condemner is unable to agree with or locate the owner of the property under ORS 35.235, then an action to condemn property may be commenced in the circuit court of the county in which the property proposed to be condemned, or the greater portion thereof is located.  An action may be commenced against the person in whose name the record title appears.  There may be included as defendants any lessee or other person in possession and all other persons having or claiming an interest in the property[i].

The complaint shall describe the property sought to be condemned and shall allege the true value of the property sought and the damage, if any, resulting from the appropriation thereof[ii].  The court may distribute all or any part of the funds deposited by a condemner to the persons entitled thereto for or on account of the just compensation to be awarded in the action, upon such terms and conditions as may appear just and reasonable.  Any persons entitled to withdraw any or all of the deposit may do so at any time without waiving rights of appeal provided by ORS 35.355[iii].

Evidence shall be received and the trial conducted in the order and manner prescribed for a civil action in the circuit court, except that the defendant shall have the option of proceeding first or last in the presentation of evidence, if notice of such election is filed with the court and served on the condemner at least seven days prior to the date set for trial.  If no notice of election is filed, the condemner shall proceed first in the presentation of evidence.  Unless the case is submitted by both sides to the jury without argument, the party who presents evidence first shall also open and close the argument to the jury.  Both the condemner and defendant may offer evidence of just compensation, but neither party shall have the burden of proof of just compensation[iv].

Upon the assessment of the compensation by the jury, the court shall give judgment appropriating the property in question to the condemner, conditioned upon the condemner’s paying into court the compensation assessed by the jury.  After the making of such payment, the judgment shall become effective to convey the property and the right of possession thereof to the condemner if not previously acquired[v].   If an action is abandoned by the condemner, the court shall enter judgment in favor of the defendant for costs and disbursements in the action and for reasonable attorney fees and reasonable expenses as determined by the court.  Expenses mean costs of appraisals and fees for experts incurred in preparing and conducting the defense to the action.  An action is considered abandoned if, at any time after filing a complaint, the case is dismissed or terminated or the condemner files an election not to take the property.  If an election is not filed within 60 days after the verdict, the condemner is considered to have elected to take the property[vi].

At least 40 days before the filing of any action for condemnation of property or any interest in property, the condemner shall make a written offer to the owner or party having an interest to purchase the property or interest, and to pay just compensation therefor and for any compensable damages to the remaining property.  The offer shall be accompanied by any written appraisal upon which the condemner relied in establishing the amount of compensation offered. If the condemner determines that the amount of just compensation due is less than $ 20,000, the condemner, in lieu of a written appraisal, may provide to the owner or other person having an interest in the property a written explanation of the basis and method by which the condemner arrived at the specific valuation of the property.  The amount of just compensation offered shall not be reduced by amendment or otherwise before or during trial except on order of the court entered not less than 60 days prior to trial.  An order for reduction of the just compensation offered, pleaded by the condemner in the complaint or deposited with the court for the use and benefit of the owner pending outcome of the condemnation action, may be entered only upon motion of the condemner and a finding by clear and convincing evidence that the appraisal upon which the original offer is based was the result of a mistake of material fact that was not known and could not reasonably have been known at the time of the original appraisal or was based on a mistake of law.

Unless otherwise agreed to by the condemner and the owner, prior to appraising the property, the condemner shall provide not less than 15 days’ written notice to the owner of the planned appraisal inspection.  The property owner and designated representative, if any, shall be invited to accompany the condemner’s appraiser on any inspection of the property for appraisal purposes.  The owner has not less than 40 days from the date the owner receives the written offer, accompanied by the appraisal or written explanation to accept or reject the offer.  If the owner rejects the condemner’s offer and obtains a separate appraisal, the owner shall provide the condemner with a copy of the owner’s appraisal not less than 60 days prior to trial or arbitration.  Failure to provide the opposing party with a copy of the appropriate appraisal shall prohibit the use of the appraisal in arbitration or at trial.

In the event the owner and condemner are unable to reach an agreement and proceed to trial or arbitration, each party to the proceeding shall provide to every other party a copy of every appraisal obtained by the party as part of the condemnation action.  If an action based on the condemnation is filed, the owner may elect to have compensation determined by binding arbitration if the total amount of compensation claimed by any party does not exceed $ 20,000.  Notice of an election of binding arbitration must be given to the condemner at least 90 days prior to the date on which an arbitration hearing is scheduled under ORS 36.420.

Notwithstanding the amount established under ORS 36.400, if the owner elects to proceed with binding arbitration, the arbitration shall be conducted according to the mandatory arbitration program established under ORS 36.400 to 36.425.  Notwithstanding ORS 36.425, no party may request a trial de novo after the filing of the decision and award of the arbitrator.  Within 20 days after the filing of the decision and award of the arbitrator under ORS 36.425, any party may file a motion with the court for the vacation, modification or correction of the award.  The court may vacate an award only if there is a basis to vacate the award.  The court may modify or correct an award only for the grounds given in ORS 36.710.

If the total amount of compensation claimed exceeds $ 20,000 but is less than $ 50,000, the owner may elect to have compensation determined by nonbinding arbitration under the applicable provisions of ORS 36.400 to 36.425.  If a trial is held or arbitration conducted for the fixing of the amount of compensation to be awarded to the defendant owner or party having an interest in the property being condemned, the court or arbitrator shall award the defendant costs and disbursements including reasonable attorney fees and reasonable expenses as defined in ORS 35.335 (2) in the following cases only:

  • If the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement submitted by condemner before the filing of the action to those defendants appearing in the action; or
  • If the court finds that the first written offer made by the condemner to the defendant in settlement before the filing of the action did not constitute a good faith offer of an amount reasonably believed by the condemner to be just compensation.
  • If any appraisal provided to a party under this section relies on a written report, opinion or estimate of a person who is not an appraiser, a copy of the written report, opinion or estimate must be provided with the appraisal.  If any appraisal provided under this section relies on an unwritten report, opinion or estimate of a person who is not an appraiser, the party providing the appraisal must also provide the name and address of the person who provided the unwritten report, opinion or estimate.

Costs and disbursements other than reasonable attorney fees and expenses as defined in ORS 35.335 (2) shall be awarded to condemner in all cases other than those in which defendant is entitled to costs and disbursements under subsection (7) of this section[vii].  Every condemner having the right to purchase, acquire, enter upon and appropriate land and property for establishing, laying out, widening, enlarging or extending roads, streets or highways, may purchase, acquire, enter upon and appropriate, in or in connection with establishing, laying out, widening, enlarging or extending roads, streets or highways, land and property immediately adjoining the proposed boundaries of such roads, streets or highways.  The authority conferred by subsection (1) of this section does not extend to the purchase, acquisition, entering upon or appropriation of any adjoining land or property situate more than 100 feet distant from or beyond the proposed boundaries of any such road, street or highway, or of any such adjoining land or property that constitutes the whole or any part of a platted lot or tract of rectangular shape and having an area of 5,000 square feet or more and its shorter dimension not less than 50 feet in length, or that constitutes the whole or any part of any tract of land in common ownership of like shape and having like minimum area and dimensions[viii].

The purchase, acquisition, entering upon and appropriation of lands and property immediately adjoining the boundaries of roads, streets or highways, as defined and limited in, and to the extent authorized by, ORS 35.600 to 35.625 is declared to be necessary for the development and welfare of the state and its inhabitants and to be a public use[ix].  If private property is appropriated for the public use as authorized by ORS 35.605, and the compensation and damages arising from the appropriation cannot be agreed upon, the appropriation shall be made and the compensation and damages shall be considered, ascertained, determined, awarded and paid in the manner provided by the statute[x].

[i] ORS § 35.245.

[ii] ORS § 35.255.

[iii] ORS § 35.285.

[iv] ORS § 35.305.

[v] ORS § 35.325.

[vi] ORS § 35.335.

[vii] ORS § 35.346.

[viii] ORS § 35.605.

[ix] ORS § 35.620.

[x] ORS § 35.625.


Inside Oregon Eminent Domain Laws