Some condemnation counsel believe that once their client obtains title that the condemnor can move on and possess the subject property. Not so. Vesting title is prescribed by Section 402 of the Eminent Domain Procedure Law. Most condemnations will be controlled by Subdivision B and take place in the Supreme Court. The law sets strict requirements as to the necessary documents to be filed with a petition to condemn along with absolute time requirements for service.
After fully complying with all statutory requirements, a Supreme Court Justice will sign an Order vesting title. But it’s not the vesting Order that transfers title, rather it is the filing of the acquisition map in the County clerk’s office pursuant to the Order that vests the condemnor with title.
A recent proceeding provided a condemnor’s counsel providing in the vesting order that once title vests, the condemnor shall have immediate possession.
It doesn’t work that way. Possession is controlled by Section 405 of the Eminent Domain Procedure Law. If the condemnor has a right to possession and the condemnor shall deem it necessary to cause the removal of a condemnee or other occupant by either a landlord-tenant proceeding, or as is most often the case, by proceeding in the Condemnation Part, Supreme Court for writ of assistance.
Granting a writ of assistance to throw a former owner or legal tenant out is one of the least favorite matters for a Judge. An application for a writ will be adjourned repeatedly to give the condemnee time to move on its own. Judges will do everything possible to arrange a satisfactory vacate date as long as the occupant is proceeding reasonably.
A condemnor may not obtain possession unless and until it first pays the condemnee an advance payment. Then it still has to afford reasonable time for the condemnee to relocate.
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