Code of Virginia

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Code of Virginia
Title 25.1. Eminent Domain
Chapter 2. Condemnation Procedures
4/15/2021

Article 6. Provisions Applicable to Determinations of Just Compensation.

§ 25.1-230. Measure of just compensation; oaths of members of body determining just compensation.

A. The body determining just compensation shall ascertain (i) the value of the property to be taken and (ii) the damages, if any, that may accrue to the residue beyond the specific enhancement in value, if any, to such residue caused by the taking and public use of the property for which it is condemned. Such enhancement in value shall not be offset against the value of the property taken, and if such enhancement in value exceeds the damages, there shall be no recovery against the landowner for such excess.

In determining the market value of the property before the taking, the body determining just compensation may consider everything a buyer and seller in the marketplace would reasonably consider, but may not consider any increase or decrease in the fair market value of the property caused by the public use for which the property is being acquired, or by the likelihood that the property would be acquired for such public use, other than that due to physical deterioration within the reasonable control of the owner.

In determining the market value of the residue after the taking, the body determining just compensation may consider everything a buyer and seller in the marketplace would reasonably consider, including the public use for which the property is being acquired, but may not consider any general enhancement the residue experiences in common with surrounding properties as a result of the public use.

Nothing in this subsection shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

B. Before executing their duties, each member of the body determining just compensation shall take an oath before an officer authorized by the laws of the Commonwealth to administer an oath that he will faithfully and impartially ascertain the amount of just compensation to which a party is entitled.

Code 1919, §§ 4366, 4367; 1928, p. 334; 1948, p. 168; Code 1950, §§ 25-12, 25-16; 1962, c. 426, § 25-46.20; 1968, c. 535; 1973, c. 510; 1974, c. 625; 1975, c. 551; 1991, c. 520; 1993, c. 906; 1997, c. 58; 2000, c. 1029; 2003, c. 940; 2019, c. 788.

§ 25.1-230.1. Lost access and lost profits.

A. For purposes of this section:

"Business" shall have the same meaning as set forth in § 25.1-400.

"Business profit" means the average net income for federal income tax purposes for the three years immediately prior to the later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, for a business or farm operation located on the property taken.

"Direct access" means ingress or egress on or off a public road, street, or highway at a location where the property adjoins that road, street, or highway.

"Farm operation" shall have the same meaning as set forth in § 25.1-400.

B. The body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access caused by the taking or damaging of the property. The body determining just compensation shall ascertain any reduction in value for lost access, if any, that may accrue to the residue as provided in subsection A of § 25.1-230, by reason of the taking and use by the petitioner. If such peculiar benefit or enhancement in value shall exceed the reduction in value, there shall be no recovery against the landowner for such excess. The body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.

C. The body determining just compensation shall include in its determination of just compensation lost profits to the owner of a business or farm operation conducted on the property taken only if the owner proves with reasonable certainty the amount of the loss and that the loss is directly and proximately caused by the taking of the property through the exercise of eminent domain and the following conditions are met:

1. The loss cannot be reasonably prevented by a relocation of the business or farm operation, or by taking steps and adopting procedures that a reasonably prudent person would take and adopt;

2. The loss will not be included in relocation assistance provided pursuant to Chapter 4 (§ 25.1-400 et seq.);

3. Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged; and

4. The loss shall be determined in accordance with generally accepted accounting principles applied on a consistent basis.

D. Any and all liability for lost access shall be established and made a part of the award of just compensation for damage to the residue of the property taken or damaged, and any and all liability for lost profits shall be set forth specifically in the award. In a partial acquisition, in the event that the owner of the property being condemned and the owner of the business or farm operation claiming lost profits are the same, then any enhancement or peculiar benefit shall be offset against both damage to the residue and lost profits.

E. It shall not be a requirement of any bona fide effort to purchase the property pursuant to § 25.1-204 or 33.2-1001 that the petitioner include any liability for lost profits in a written offer to purchase the property.

F. In any proceeding in which the owner of a business or farm operation seeks to recover lost profits, the owner shall provide the condemning authority with all federal income tax returns, if any, relating to the business or farm operation for which the owner seeks lost profits for a period of three years prior to the later of (i) the valuation date or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, and for each year thereafter during the pendency of the condemnation proceeding. The condemning authority shall not divulge the information provided pursuant to this subsection except in connection with the condemnation proceeding. Additionally, unless already named in the petition for condemnation, the owner may intervene in the proceeding by filing a motion to intervene accompanied by a petition for intervention setting forth the basis for the lost profits claim under this chapter. Proceedings to adjudicate lost profits may be bifurcated from the other proceedings to determine just compensation if the lost profits claim period will not expire until one year or later from the date of the filing of the petition for condemnation, but such bifurcation shall not prevent the entry of an order confirming indefeasible title to the land interests acquired by the condemning authority.

G. Nothing in this section is intended to provide for compensation for inverse condemnation claims for temporary interference with or interruption of a business or farm operation other than that which is directly and proximately caused by a taking or damaging of property through the exercise of eminent domain.

2012, cc. 699, 719; 2015, c. 642; 2018, c. 702; 2019, c. 788.

§ 25.1-231. View of property.

The court shall direct the body determining just compensation, in the custody of the sheriff or sergeant or one of his deputies, to view the property described in the petition with the owner and the petitioner, or any representative of either party, and none other, unless otherwise directed by the court. Upon motion of either party, the judge shall accompany the body determining just compensation upon such view. Such view shall not be considered by the body determining just compensation as the sole evidence in the case.

Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.

§ 25.1-232. Testimony on issues; report on just compensation.

A. Upon completion of the view, the court shall hear the testimony in open court on the issues joined.

B. When the body determining just compensation shall have arrived at its conclusion, it shall make its report in writing to the court.

Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.

§ 25.1-233. Confirmation of report; exceptions to report.

A. The report of the body determining just compensation may be confirmed or set aside forthwith by the court.

B. However, when the report is so filed and before the court passes thereon, either party shall have the right to file written exceptions to the report, which shall be filed not later than 10 days after the rendering of the report by the body determining just compensation. The court shall have the same power over the reports of the body determining just compensation as it now has over verdicts of juries in civil actions.

C. Upon hearing of exceptions to the report the court shall not recall and question the members of the body determining just compensation as to the manner in which their report was determined unless there be an allegation in such written exceptions that fraud, collusion, corruption or improper conduct entered into the report. If such allegation is made, the judge shall summon the members of the body determining just compensation to appear and he alone shall question them concerning their actions. If the court be satisfied that fraud, collusion, corruption or improper conduct entered into the report of the body determining just compensation, the report shall be set aside and a new body to determine just compensation shall be empanelled to rehear the case.

D. If the court be satisfied that no such fraud, collusion, corruption or improper conduct entered into the report of the body determining just compensation, or no other cause exists that would justify setting aside or modifying a jury verdict in civil actions, the report shall be confirmed.

Code 1919, §§ 4368, 4369; Code 1950, §§ 25-17, 25-18, 25-18.1; 1956, c. 563; 1962, c. 426, § 25-46.21; 1991, c. 520; 2000, c. 1029; 2003, c. 940.

§ 25.1-234. Participation by certain tenants in proceedings to determine just compensation.

A. Any tenant under a lease with a term of 12 months or longer may participate in the proceedings to determine just compensation to the same extent as his landlord or the owner, if, not less than 10 days prior to the date for the trial of the issue of just compensation, such tenant shall file his petition for intervention, in the manner provided in § 25.1-221. Such petition for intervention shall include (i) a verified copy of the lease under which he is in possession and (ii) an affidavit by the tenant or his duly authorized agent or attorney, stating:

1. That he claims an interest in the award; and

2. That he desires to offer admissible evidence concerning the value of the property being taken or damaged.

B. For the purposes of this section, the term of a tenant's lease shall include any renewals or extensions for which the tenant has an enforceable written option. The term "tenant" shall include the assignee of the original tenant, as well as any sublessee of the entire demised premises of the owner for the full unexpired term of the sublessor.

C. Nothing in this section shall be construed, however, as authorizing such tenant to offer any evidence in the proceedings to determine just compensation concerning the value of his leasehold interest in the property involved therein or as authorizing the body determining just compensation to make any such determination in formulating its report.

D. As used in this section, "proceedings to determine just compensation" means proceedings described in §§ 25.1-231, 25.1-232, and 25.1-233.

1966, c. 512, § 25-46.21:1; 2000, c. 1029; 2003, c. 940.

§ 25.1-235. Compensation of commissioners or jurors.

The commissioners or jurors summoned shall, for every day or portion thereof they may be employed in the performance of their duties, receive an allowance in the amount prescribed in § 17.1-618 as compensation for their attendance, travel and other costs, to be paid by the petitioner.

Code 1919, § 4366; 1928, p. 335; 1948, p. 169; Code 1950, § 25-15; 1962, c. 426, § 25-46.22; 1973, c. 26; 1974, c. 346; 1976, c. 308; 1982, c. 566; 1993, c. 137; 2000, c. 1029; 2003, c. 940; 2006, c. 586; 2010, cc. 177, 835.

§ 25.1-236. Contracts made part of report.

If the petitioner and the person whose property is being condemned under the provisions of this chapter shall, before the report of just compensation is made, (i) enter into any contract in relation to building, operating, or maintaining the proposed work, or in relation to fencing, culverts, depots, stations, crossings, sidings, cattle guards, damage from fire, injury to or destruction of property, real or personal, or like matters, and (ii) introduce such contract at the trial of the issue of just compensation, such contract shall be accepted and made a part of the report of the award of just compensation. Upon confirmation of such report, the contract shall thereafter run as a covenant with the land or with the interest or estate therein taken.

Code 1919, § 4380; Code 1950, §§ 25-36, 25-37; 1962, c. 426, § 25-46.23; 2003, c. 940.