Archive | Condemnation

When an Easement Is Really a Direct Taking

The right of an owner to just compensation for property taken by eminent domain is one guaranteed by the federal and state constitutions.  (Federal Constitution, Fourteenth Amendment; NY Constitution, Art. 1, Subd. 7).  The constitutional requirement of “just compensation” mandates that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.  City of Buffalo v J.W. Clement Co., Inc., 28 NY2d 241 258 (1971); Rose v State of New York, 24 NY2d… read more

Posted in Condemnation, Direct Taking, Easements, Eminent Domain
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The Expert Witness in a Condemnation Trial

The fundamental rule is that the qualifications of a witness as an expert is a determination within the sound discretion of the trial court.  Smith v City of New York, 238 AD2d 500 (2d Dept 1997). An expert, once qualified, is allowed to testify as to the expert’s opinion.  Sec. 7-301, Prince on Evidence (11th Ed. P. 456).  In a condemnation case, the evidence before the court will be expert testimony by appraisers, zoning experts and other valuation experts. As one court has stated, “impartiality should be the touchstone of… read more

Posted in Appraisers, Condemnation, Eminent Domain, Expert Witness, Independent Expert, Opinion Evidence, Qualifications
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The Infrastructure Fund: Will Critical Projects Ever Be Built?

The infrastructure bill that could move critical projects has stalled over funding.  For years there has been a backlog of needed repairs and upgrades to highways, bridges and roads.  An infusion of $600 billion in new federal aid could change the status in President Biden’s unprecedented overhaul of the Country’s aging public works system.  There is a sprawling $1 trillion infrastructure package whose future is uncertain. Will the funding be available?  According to the New York Times, the measure’s fate is in limbo as various factions of the Democratic Party… read more

Posted in Condemnation, Infrastructure Projects
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Eminent Domain Significant Tool for Municipal Services “Going Concern” Valuation

A news story reports that the owner of White’s Ferry on the Potomac River wants the Loudoun County Board of Supervisors to exercise eminent domain over the private Virginia property where the ferry is docked.  The owner of the Virginia land was not willing to renew the lease. An owner must be aware of the government’s power of eminent domain if their properties are used to provide public services.   Fifth Avenue Coach Lines, Inc. v City of New York, 11 NY2d 342 (1962) is one example.  In Fifth Avenue Coach,… read more

Posted in Condemnation, Going Concern Valuation, Municipal Services
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What Happens to My Mortgage When the Property is Condemned?

A mortgagee upon condemnation of the property is not without resources.  The mortgagee wants to be paid the principal balance on the secured debt. With respect to the mortgage payoff, “It is well established that, upon the vesting of title in a condemnation proceeding, all lien interests in the subject property by virtue of mortgages, unpaid taxes, or unsatisfied judgments, are extinguished (see, In re County of Nassau [Gelb – Siegel], 24 NY2d 621, 626; Copp v Sands Point Marina, 17 NY2d 291, 293; Muldoon v Mid-Bronx Holding Corp., 287… read more

Posted in Condemnation, Equitable Lien, Mortgage
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