The
KDDK Advantage - September/October 2009
Condemnation Rules
Ever Changing
Property owners facing
condemnation should proceed with caution not only to maximize
damage awards, but to avoid financial missteps such as
overpayment of real property taxes or failure to claim
interest on payments which may be due them. The Indiana
Court of Appeals provided clarification in July of 2009
concerning who is liable for payment of property taxes
on real estate which has been condemned. Previous authority
held that for purposes of determining liability for property
taxes, the general rule is that the condemning authority’s
title relates back to the date the condemnation lawsuit
was filed. Southtown Properties, Inc. v. City of Fort
Wayne, 840 N.E.2d 393 (Ind. Ct. App. 2006). That general
rule, together with the rule that title holder on March
1 of any year is liable for the real estate taxes assessed
for that year, resulted in property owners questioning
whether or not they were liable for real estate taxes
on their condemned properties. In the matter of City
of Hammond v. Graoch Associates #52, 909 N.E.2d 1086
(Ind. Ct. App. 2009), the Indiana Court of Appeals clarified
that Southtown does not apply retroactively to
condemnations that were completed before Southtown
was decided. The Court declined to invite the re-opening
of the vast number of condemnation cases that could be
re-opened if Southtown were made retroactively
applicable.
Road widenings, the new
arena, and other projects which we see being constructed
represent, in many cases, locations which were once privately
owned and then taken by the government’s condemnation
power to make way for public projects. A land owner in
condemnation must be paid just compensation, including
damages for the fair market value of the real estate and
improvements being acquired, damages to the remaining
portion of the real estate which is not being taken (the
residue), and the other damages, if any, that will result
from the construction of the condemnor’s project in the
manner proposed by the condemnor. Relocation payments
may also be applicable. In the event of a partial taking,
the damage element pertaining to remaining real estate
is critical. Monetary compensation is helpful, but even
more helpful may be an engineering solution, such as bargaining
for access points, specifically the location or number
of access points, which provides not only a form of compensation
but can add value and lend appeal to future development
of the property.
<<<
KDDK Announces Firm's Upcoming Leadership Change
<< Indiana Supreme Court
Rejects "Read-and-Heed" Presumption
< New Rules for Preventing
Identity Theft Impose Obligations on Businesses |
