Pursuant to Virginia statutes, any state institution may acquire by condemnation title to (i) land, (ii) any easement thereover or (iii) any sand, earth, gravel, water or other necessary material for the purpose of opening, constructing, repairing or maintaining a road or for any other authorized public undertaking. However, such acquisition by condemnation shall only be commenced if the terms of purchase cannot be agreed upon or the owner (a) is unknown, (b) cannot with reasonable diligence be found within the Commonwealth or (c) cannot negotiate an agreement or convey legal title to the property because the owner is a person under a disability[i].
Except as provided in §§ 15.2-1906 and 15.2-2146, no (i) corporation or (ii) electric authority created under the provisions of Chapter 54 (§ 15.2-5400 et seq.) of Title 15.2 shall file a petition to take by condemnation proceedings any property belonging to any other corporation possessing the power of eminent domain, unless, after notice to all parties in interest and an opportunity for a hearing, the State Corporation Commission shall certify that a public necessity or that an essential public convenience shall so require, and shall give its permission thereto; and in no event shall one corporation take by condemnation proceedings any property owned by and essential to the purposes of another corporation possessing the power of eminent domain. If the State Corporation Commission gives its permission to a condemnation, the Commission shall establish for use in any condemnation proceeding whether any payment for stranded investment is appropriate and, if so, the amount of such payment and any conditions thereof[ii].
If a condemnor has acquired a fee simple interest in property by exercise of its power of eminent domain and subsequently declares that the property is surplus, the condemnor shall offer, within 30 days following such determination, to sell such property to the former owner or his heirs or other successors or assigns of record. Upon completion of the stated public use or where the stated public use has been abandoned, the condemnor shall provide written notice, pursuant to subsection B, of such completion or abandonment to the former property owner or his/her heirs or other successors or assigns of record. Upon completion of the stated public use or where the stated public use has been abandoned, the former property owner or his heirs or other successors or assigns of record may make a written demand that the condemnor declare any excess property as surplus. The right to the offer of repurchase cannot be waived and any contractual provision or agreement waiving such right is void and unenforceable. The offer to sell shall be made by the condemnor at the price paid by the condemnor to the former owner plus interest at the annual rate of six percent; provided that the condemnor may increase the price by the fair market value of the condemnor’s improvements, determined at the time the offer to sell is made.
In no case shall the price established by the condemnor exceed the fair market value of the property at the time the offer to sell is made. If no written response is received by the condemnor from the former owner within 90 days after the offer to sell has been made, the former owner shall be deemed to have waived his right to the offer of repurchase. Notice of the offer to repurchase shall be sent by certified mail to (i) the last known address of the former owner and (ii) the address of the last owner of record as it appears in the tax records of the local treasurer.[iii]
The petition for condemnation shall contain:
A caption wherein the person vested by law with power to exercise the right of eminent domain shall be the petitioner, and the named defendants shall be at least one of the owners of some part of or an interest in the property to be taken or damaged, and the property to be taken designated generally by kind, quantity and location, and short and plain statements of the following:
- The authority for the taking;
- The necessity for the work or improvements to be made;
- The public uses for which the property is to be taken;
- A description of the work or improvements to be made; and if (i) only a portion of the property is to be taken or (ii) any other property will or is likely to be damaged as the result of the taking, a plat, drawing or plan, in sufficient detail to disclose fairly the nature of such work or improvements, including specifications, elevations and grade changes, if any, so as to enable the owner of such property to be reasonably informed of the nature, extent and effect of such taking and the construction and operation of such works and improvements, shall be attached as an exhibit to the petition;
- The estate, interest or rights in the property to be taken;
- A description of the property to be taken sufficient for its identification and a plan or plat of the land to be taken shall be attached as an exhibit to the petition;
- As to each separate piece of property to be taken or damaged, the names and residences, so far as known by petitioner, of the defendants who are joined as owners of the property, or of some interest therein, if their names have been ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, or if their names have otherwise been learned; and if the names of other persons or classes of persons to be joined as owners of the property are unknown, such persons may be made defendants under the designation of “Unknown Owners”;
- Compliance with the provisions of § 25.1-204 and the manner of such compliance; and
- Where applicable, compliance with the provisions of § 25.1-102 and the manner of such compliance.
A prayer asking for judgment (i) that the property or the estate, interest or rights therein be condemned and the title thereto vested in the petitioner, (ii) that just compensation be ascertained as provided in § 25.1-230 and awarded, and (iii) for such other relief as may be lawful and proper[iv].
Upon the filing of a petition for condemnation, the petitioner shall give the owners 21 days’ notice of the filing of such petition and of its intention to apply to the court to ascertain just compensation for the property to be taken or affected as a result of the taking and use by the petitioner of the property to be so acquired. The notice, along with a copy of the petition, shall be served on the owners. In such notice, the petitioner shall give notice that an answer and grounds of defense shall be filed setting forth any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case and to elect to proceed with the empaneling of a jury for the determination of such just compensation. The notice may also include notice of the petitioner’s application for the right of entry as provided in § 25.1-223, if such application is included in the petition as authorized by § 25.1-207. A copy of the notice required to be served on the owners by this section also shall be served in the same manner upon any tenant entitled to participate in the proceeding pursuant to § 25.1-234, whose lease has been duly recorded or whose tenancy is actually known to the petitioner[v].
Unless otherwise provided by law, any petitioner may enter upon the property to be condemned at any time after the filing of its petition for condemnation, for the purpose of constructing its works or improvements thereon in the manner proposed by the petitioner upon approval of the petitioner’s application for entry as provided in this article. Notice of the petitioner’s application for entry shall be served on the owners in the same manner as is provided in this chapter for service of notice of the filing of a petition[vi]. The body determining just compensation shall in each case ascertain the amount of just compensation to which a party is entitled as follows:
- If the condemnation proceeding is brought utilizing the procedure set forth in Chapter 3 (§ 25.1-300 et seq.) of this title or §§ 33.1-119 through 33.1-132, the body determining just compensation shall ascertain the value of the property to be taken and the damages, if any, which may accrue to the residue beyond the enhancement in value, if any, to such residue by reason of such taking and use by the petitioner, however, (i) such enhancement in value shall not be offset against the value of the property taken, and (ii) if such enhancement in value shall exceed the damage, there shall be no recovery against the landowner for such excess; and
- In any other condemnation proceeding, the body determining just compensation shall ascertain the value of the property to be taken and the damages, if any, to any other property beyond the peculiar benefits, if any, to such other property, by reason of such taking and use by the petitioner.
Before executing their duties, each member of the body determining just compensation shall take an oath before an officer authorized by the laws of this Commonwealth to administer an oath that he will faithfully and impartially ascertain the amount of just compensation to which a party is entitled[vii]. Upon the return of the report of the body determining just compensation, and the confirmation, alteration or modification thereof in the manner provided in this chapter, the sum so ascertained by the court as compensation and damages, if any, to the property owners may be paid into court. Upon paying such sum into court, title to the property and rights condemned shall vest in the petitioner to the extent prayed for in the petition, unless such title shall have already vested in the petitioner in a manner otherwise provided by law. The petitioner or its agent shall have the right to enter and construct its works or improvements upon or through the property described in its petition[viii].
Upon the award being paid into court and the confirmation of the report in the manner provided in § 25.1-237, the interest or estate of the owner or owners in the property taken or damaged shall terminate and they shall have such interest or estate in the fund and any interest accrued thereon so paid into court as they had in the property so taken or damaged. All liens by a deed of trust, judgment or otherwise upon such property or any interest therein shall be transferred to the fund so paid into court. If the court is satisfied that the persons having an interest therein are before the court, the court shall make such distribution of such money and any interest accrued thereon as to it may seem proper, having due regard to the interest of all persons therein, and in what proportions such money is properly payable. If it appears from the record in the proceedings or otherwise that the person or persons or classes of persons in the proceedings are vested with the superior right or claim of title in the land or estate or interest therein condemned, or in the proceeds of the award of just compensation, and that the record does not disclose any denial or dispute thereof, by any person or party in interest, the court may direct that the fund and any interest accrued thereon, after the payment therefrom of any taxes, be disbursed and distributed accordingly among the persons entitled thereto or to such person who they may by writing direct. Notwithstanding the provisions of subsection B, the court may inquire into the rights or claims of any persons appearing to be infants, incapacitated or under any other legal incapacity, independent of any statement in the record. Any order for distribution shall conserve and protect the rights of such parties in and to the fund and any interest accrued thereon. The cost of a commissioner in chancery appointed by the court to assist in making the proper distribution in cases of legal disability as herein set forth may be taxed as a cost of the proceedings, to be paid by the petitioner[ix].
If a hearing has not begun in the trial of the issue of just compensation for the taking or damaging of property and the petitioner has not already acquired the title or a lesser interest or estate in, or taken possession of, such property, the petitioner may upon motion obtain, as a matter of right, an order dismissing the proceeding as to such property. Such order shall also provide, except as may be provided otherwise in a settlement by agreement of the parties, that the petitioner shall pay such owner or owners their reasonable expenses that have been actually incurred by them in preparing for the trial on the issue of just compensation, in such amounts as the court deems just and reasonable[x].
At any time after a hearing has begun in the trial of the issue of just compensation for the taking or damaging of any property or property interest, if the petitioner has not already acquired title or a lesser interest in, or taken possession of, such property, or paid the amount of just compensation into court, and before the time for noting an appeal from any final order upon a report of just compensation, the petitioner may, upon motion, obtain as a matter of right an order dismissing the proceedings as to such property. Such order shall also provide that the petitioner shall pay such owner or owners for the following expenses that have been actually incurred by them in such amounts as the court deems just and reasonable: (i) an attorney’s fee; (ii) witness fees, including reasonable fees of not more than three expert witnesses; and (iii) other reasonable expenses and compensation for time spent as a result of the condemnation proceedings. If any such expenses are not paid within 30 days of the entry of such order, judgment therefor shall be entered against the petitioner[xi].
Before the vesting of title, or a lesser interest therein in any property in the manner prescribed, the proceedings may be dismissed, in whole or in part, as to any such property upon the filing of a stipulation of dismissal by the parties affected thereby. The court may vacate any order that has been entered, if such parties so stipulate. The court may at any time drop a defendant unnecessarily or improperly joined[xii].
[i] Va. Code Ann. § 25.1-101.
[ii] Va. Code Ann. § 25.1-102.
[iii] Va. Code Ann. § 25.1-108.
[iv] Va. Code Ann. § 25.1-206.
[v] Va. Code Ann. § 25.1-209.
[vi] Va. Code Ann. § 25.1-223.
[vii] Va. Code Ann. § 25.1-230.
[viii] Va. Code Ann. § 25.1-237.
[ix] Va. Code Ann. § 25.1-240.
[x] Va. Code Ann. § 25.1-248.
[xi] Va. Code Ann. § 25.1-249.
[xii] Va. Code Ann. § 25.1-251.