 A) Pre-taking Negotiations. Usually, the property
owner will be approached by a right of way (if it is
the State) or a representative of the Town to advise
the property owner that the property may be taken and
who may also want to discuss or make a proposal for
the acquisition of the property. The property owner
may want to negotiate, but should be aware that he or
she is under no obligation to accept any offer made
by the State of the Town. Should the negotiations prove
unsuccessful, the State or Town may then initiate the
condemnation process.
B) The State takes property simply by filing a
map and, upon the filing of the map, the property is
legally conveyed to the State. In respect to other localities,
like the Town, proceedings in the Supreme Court of the
County will be commenced for the formal vesting of title.
There is usually little defense to the actual vesting
of title. The basic remedy is for the property owner
to seek the maximum just compensation for which they
are entitled.
C) Upon vesting of title, the property owner is legally
entitled to an “advance payment”. The advance
payment must represent 100% of the State’s or
Town’s appraisal of the value of the property.
D) It cannot be emphasized too strongly that the property
owner is under absolutely no obligation to accept the
advance payment. The property owner may accept the advance
payment and, at the same time, reserve their right to
file a claim for additional compensation. The property
owner is entitled to receive the advance payment even
though he or she may not be accepting such amount in
full payment or the just compensation to which they
are entitled and will be making a further claim. Therefore,
until such time as the property owner has had an opportunity
to confer with a real estate tax expert and legal counsel,
it is usually the most prudent course of action to simply
accept the advance payment only. Essentially, the property
owner should take no action until such time as they
have had an opportunity to consult with an experienced
real estate person or attorney as to their proper course
of action, which will usually be acceptance of the advance
payment with a reservation of rights.
E) Once the advance payment is accepted, it must be processed.
Any liens on the property must be cleared. Essentially,
it is really no different than a closing. Typically,
if there is a mortgage, any money paid for the condemnation,
it first goes to the reduction of the mortgage –
but with the consent of the bank, these proceeds can
be passed through to the property owner. In any event,
it does call for processing.
F) An analysis should then be made of whether a claim for
additional compensation is warranted. This should be
done as soon as possible to assure that the case can
be heard as soon as possible and also to prevent suspension
of interest on any additional award. Delay in filing
a claim could result in the loss of the right to file
a claim and/or the suspension of interest on any award.
G) Interest on a local take, such as a town taking, is
at the rate of six percent (6%) per annum and on a state
taking at the rate of nine percent (9%) per annum. The
interest rate runs from the date of taking on the entire
award.
H) Assuming that it is determined that there is
a good basis to seek additional compensation, a notice
of claim must be filed and counsel should be retained
and ultimately other experts such as an appraiser and/or
engineer to prepare the necessary reports to successfully
pursue the claim.
I) Once expert reports are prepared, they are
exchanged with the State or the Town and the matter
is scheduled for trial. Of course, there are usually
negotiations throughout the entire process and the matter
may be amicably settled prior to trial. |
