The Federal Declaration of Taking Act

The U.S. federal government has the power to acquire private property for public use.  The legislation in relation to this power is called the Federal Declaration of Taking Act.  An officer of the federal government is given authority to acquire land. An acquisition is done by condemnation.

The condemnation or taking of the land is to be done in accordance with the constitutional provisions.  An owner of a private property should be given just compensation for the property taken.

Condemnation will be carried out under the judicial process for the benefit of the public by the government.  The authorized officer files an application before the Department of Justice and the Attorney General commences the condemnation proceedings within thirty days from the date of the application.

In any proceeding of condemnation in any court, a petitioner has to file a declaration of taking along with the petition or at any time before judgment.  A declaration of taking has to be signed by the authorized officer entrusted with acquisition of land and it has to contain a declaration to the effect that the property described in the petition is acquired for the use of the government.

A declaration of taking shall contain[i]:

  • A statement with regard to the authority under which a land is taken and the public use for which the acquisition is made;
  • A clear description of the land which is adequate in identifying the land acquired;
  • A statement of the estate or interest in the acquired property;
  • A location plan of the land taken; and
  • An account of the amount of money estimated to be reasonable compensation for the land acquired.

When a declaration is effected, the title to the estate or interest stated in the declaration starts to vest with the government.  Another result is that the land is considered condemned and taken for the use of the government and the landowners are vested with the right to just compensation for their land[ii].

Compensation will be determined by the court in the condemnation proceeding.  An award of compensation shall include interest payable in accordance with the statute.  A landowner will be eligible for interest to the amount granted by the court.  Interest will be calculated based on the value of the property from the date of taking to the date of payment.  Amounts that have been paid to the court towards compensation will not be granted interest[iii].

On filing of the declaration, the court will fix a time within which the possession of the property is to be handed over to the government.  Also the terms for handing over the possession of the property will be fixed.  A court shall also pass orders regarding encumbrances, liens, rents, taxes, insurance and other similar charges[iv].

A court may order an interim part payment of compensation from the amount deposited in the court to any of the parties in interest[v].  The court may pass deficiency judgment against the government, in a case where the amount assessed by the court as compensation is higher than the amount deposited in the court, for the deficient compensation amount[vi].

The vesting of title to the land won’t be delayed on the ground of appeal or an undertaking made before a court.

An authorized officer may file a declaration of taking committing the federal government to satisfy the final award of compensation only if s/he believes that the sum that would be awarded by the court will be within the limits prescribed by congress.  This is due to the fact that the action taken is an irrevocable commitment.  The government may spend money on the property acquired by carrying out construction for public use or destroying the existing structures, on the belief that it would be able to satisfy the final judgment of the court[vii].

A court shall calculate the interest to be paid on the amount of compensation to the land owner on the basis of the period for which interest is owed.  The director of the administrative office of the U.S. courts issues orders with regard to the applicable rates of interest to all federal courts.  In the case where the interest is to be given for a period below one year, the interest shall be calculated from the date of taking.  It will be calculated at an annual rate equal to the weekly average one year constant maturity yield as on the week before the date of taking[viii].

Where the interest owed is more than one year, the interest would be calculated for the first year in the same way as the calculation for a period less than one year.  For the additional years the interest will be calculated at an annual rate equal to the weekly average one year constant maturity yield as on the week before the beginning of each additional year[ix].  The amount taken for the additional years would be the additional amount in excess of the amount deposited in the court and the accrued interest.  In a condemnation proceeding, the attorney general may agree to exclude a part of the property or interest in the property taken by the government[x].

The government is vested with various rights, power, and authority conferred by the laws of the U.S. and its other political sub divisions under which proceedings are conducted.  In addition to the right, power, or authority available to the government, there is the right to take possession of the property even before the final judgment of the court[xi].

[i] 40 USCS § 3114 (a).

[ii] 40 USCS § 3114 (b).

[iii] 40 USCS § 3114 (c).

[iv] 40 USCS § 3114 (d).

[v] 40 USCS § 3114 (c)(2).

[vi] 40 USCS § 3114 (c)(3).

[vii] 40 USCS § 3115.

[viii] 40 USCS § 3116(a) (1).

[ix] 40 USCS § 3116(a) (2).

[x] 40 USCS § 3117.

[xi] 40 USCS § 3118.


Inside The Federal Declaration of Taking Act