Washington Eminent Domain Procedure | Part III | Immediate Possession

In my last post I discussed the initial stages of the eminent domain process after negotiations have reached a standstill (or the condemning authority needs to move forward because of project timetables), including notice of eminent domain and the petition for eminent domain. In the following paragraphs I'll give you the rest of the statutory rules.

Order for Immediate Possession of Your Property by the State, county, or city

In some instances, mostly because of project time pressures, the condemning authority will need your property as quickly as possible. The Legislature has recognized this and allows for condemning authorities to ask the court for an Order of Immediate Possession.

To get an order of immediate possession a couple of things must happen: (1) an order of necessity must have been granted; (2) the order of necessity shall not have been challenged by the landowner; (3) the condemning authority shall require immediate possession; (4) the Attorney General has stipulated (agreed) with landowners in accordance with RCW 8.04.092 and 8.04.094 (discussed below); (5) filed with the court a certificate that the condemning authority requires immediate possession and use of the land, which also states the amount of money to be offered and that the offer constitutes a continuing offer; (6) a copy of the certificate is filed with the office of financial management, who cuts a check for the amount offered to the attorney generals office; and (7) the money offered to take the property is paid into the court. RCW 8.04.090.

Once all of this happens the court must enter an order granting the state immediate possession and use of the property and ordering the state to pay the full amount of any final judgment of compensation and damages that is awarded for the taking.

What does this all mean? It means the condemning authority has the ability to take immediate possession of your property. What it does not mean is you are bound by their last offer. Contesting the amount they have offered for just compensation for the taking is still allowed. And whatever you are awarded, if it is over the initial offer, will be paid by the condemning authority. If immediate possession is sought by the state, to make sure your rights are correctly represented, you should contact an expert in Seattle Washington eminent domain law.

If Payment for Eminent Domain Taking is Withdrawn a Trial for Damages May Still Occur

The court considers the amount paid into the court as just compensation an adequate amount for the taking of property by eminent domain if no trial is demanded by the landowner. RCW 8.04.092. If the award is challenged, however, the landowner may take the amount paid into the court out of the court's possession with no penalty. If, after a trial, the amount owed to the landowner for the property taken and damages to the remainder is more than that paid by the condemning authority, they will have to immediately pay the difference. If, however, the award is lower than that paid into the court by the condemning authority, the landowner must pay back to the state the difference.

What does this statute mean for you as a landowner? First, it is okay to take the money paid into the court out of court for your property. From the court's point of view, until a jury or judge decides otherwise, that amount is just compensation for the taking of your property. Second, and more importantly, if a judge or jury decide an amount different than that paid into the court, the party that has paid too much or taken too much must make up the difference.

Landowner Must Demand A Trial within Sixty Days of the Order of Immediate Possession

If you do contest the award offered by the condemning authority and paid into court, then you must demand a trial for the purposes of assessing just compensation within sixty days of the date the order of immediate possession and use is filed. After the demand is made, the trial must be set within one year of the date the demand is made, unless good cause for delay can be shown. If no demand for trial is made in the time allotted, the court shall enter a decree of appropriation for the amount paid into court. The decree shall be final and nonappealable. RCW 8.04.094

What does this mean? If you are not happy with the award the condemning authority has offered and paid into the court, TIME IS OF THE ESSENCE. You must contact a property attorney experienced in eminent domain immediately to preserve your rights. If the demand for trial is not filed within sixty days you will lose the ability to challenge the amount the condemning authority thinks your property is worth. This is very important!

This wraps up takings for States, counties, and cities in Washington State when immediate possession is wanted by the condemning authority. Next up I'll discuss what happens when a property has more than one owner.