Temporary easements are commonly taken by the State for highway work and by the Metropolitan Transportation Authority for railroad improvement. Often the temporary easement is taken in conjunction with permanent easements. Sometimes they are labeled otherwise. But if there is a court order granting the right to enter private property and occupy the property for a period of time, it is a taking under New York Law. While a condemnor has the right of entry prior to acquisition, this is for the purpose of investigation. New York’s Eminent Domain Procedure Law Sec. 404 provides that the condemnor shall be liable to the owner for any damages caused by the condemnor as a result of the entry.
In fact, a property owner when faced with an application should consider requesting a bond to protect from any damages which may be occasioned by the inspections. See Sun Co. v City of Syracuse I.D.A., 197 AD2d 912 (4th Dept 1993).
Surveys, test pits and investigations are one thing, but if the condemnor places any physical device on or in the property, that constitutes a taking separately. As Justice Marshall stated in Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. 419, at 437, ‘[t]he placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute. Once the fact of occupation is shown, of course a court should consider the extent of the occupation as one relevant factor in determining the compensation due.”
If the condemnor is granted the right to occupy, there is no question that a temporary easement has been taken. Normally, a temporary easement continues to run over the property until the condemnor files a certificate of completion or termination with the County Clerk. If no certificate is filed, the easement period extends up to the date of trial. Matter of County of Nassau (Minkin), 148 AD2d 533 (2d Dept 1989) and Mazzeo v State of New York, 58 Misc2d 186 (Ct. Cls. 1968).
Generally, damages from a temporary easement are measured by the rental value of the property for the period effective. A taking of a temporary easement entitles the landowner to recover the loss in rental value during the term of such taking plus further damages caused to the fee. Thus, a claimant may recover “further loss,” if any, resulting from damages to the fee arising from the use of the easement. Kaufman v State of New York, 43 AD2d 1004, aff’d 36 NY2d 745 (1975).
The further loss may be substantial if the remainder of the property was damaged by the temporary easement. An example would be the inability to access the property. Another is the loss of rental income, or the inability to develop the property during the period of the easement. Certainly, if the building was physically damaged as a result of the easement, the condemnor will be held responsible.
It is interesting to note that the Court of Appeals has supported a hindsight valuation of the interest taken. In Highland Falls v State of New York, the Court wrote, “[i]f the condemnation award is made after the easement has expired, it makes practical sense to compute the property owner’s actual damages rather than indulging in speculation on the measure of damages claimant could have contemplated at the time of taking. 44 NY2d 505, 508 (1978).