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Introduced Version Senate Bill 400 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTEWEST virginia legislature

2021 regular session

Introduced

Senate Bill 400

By Senators Clements, Swope, Roberts, Plymale, and Maroney

[Introduced February 23, 2021; referred
to the Committee on the Judiciary; and then to the Committee on Finance]


A BILL to amend and reenact §54-2-12, §54-2-13, §54-2-14, §54-2-14a, §54-2-15, §54-2-16, §54-2-18, and §54-2-21, of the Code of West Virginia, 1931, as amended, all relating to bringing the statutory interest rate to be paid in condemnation cases into conformity with current statutory rates; and making revisions to meet legislative standards.

Be it enacted by the Legislature of West Virginia:


ARTICLE 2. PROCEDURE.


§54-2-12. Vesting of title in applicant.

Except as otherwise provided in this article, at any time within three months after the report, or the verdict of a jury, if there be one, has been confirmed and ordered to be recorded, the sum so ascertained with ten percent awarded and interest thereon from the date of the filing of the petition until payment, may be paid by the applicant into court; upon such payment, title to the property, or interest or right therein, so paid for shall be absolutely vested in the applicant in fee simple or to the extent described in the petition: Provided, That in the case of a public road title to the right- of-way only shall absolutely vest in the applicant.  Interest in all condemnation cases brought under this article shall be assessed in accordance with §54-2-21 of this Code.

§54-2-13. Entry on land on payment of compensation.


(a)  After such a report has once been made, whether it be set aside, recommitted, or new commissioners appointed, or not, or whether a trial by jury be demanded and had or not, the applicant upon paying into court the sum ascertained by such the report, with ten percent interest thereon from the date of the filing of the petition until payment, may, notwithstanding the pendency of further proceedings, enter upon, take and use for the purposes specified in the application, that part of the land and property in respect to which such payment is made, and where such payment has been made and possession taken, or where payment has been made without taking such possession in a pending case, it shall have the same effect as if such payment were made or possession taken, or both, in a case hereafter commenced; and no order shall be made or any injunction awarded by any court or judge to stay it in so doing, unless it be manifest that the applicant is insolvent or that it or its officers, agents or servants, are transcending their authority, or that such interposition is necessary to prevent injury which cannot be adequately compensated in damages: Provided, That if the applicant be other than a corporate body politic, before entering upon or taking possession of such property, it shall enter into bond before the court, or judge thereof in vacation, in a penalty prescribed by the judge, with securities approved by him or her, conditioned for the payment to the owner of any additional sums which may be awarded against it in subsequent proceedings as additional compensation and damages for the property so taken.

(b)  And where, under authority of §54-10-1 of this code, wood, earth, gravel, shale, stone, water or other material are sought to be taken, impounded or consumed, the applicant, after such a report has been made, whether it be set aside, recommitted or new commissioners appointed, or not, or whether a trial by jury be demanded and had, or not, may, upon payment into court as aforesaid of the sum ascertained by the report of such the commissioners, notwithstanding the pendency of further proceedings, take, impound or consume such wood, earth, gravel, shale, stone, water or other material; and all the foregoing provisions of this section as to injunction and bond shall be applicable to such the case.

§54-2-14. Entry by state or its political subdivisions.


(a) If the applicant be is the State of West Virginia, or any political subdivision thereof, on filing its petition as authorized in this article, and if the court or judge is satisfied that the purpose for which the land or property is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the land sought to be condemned for the purposes stated in the petition. The revenues applicable to the payment of any damages or compensation to which the owner is entitled, and which shall be awarded or assessed in his or her favor, shall be deemed considered sufficient security and to have been pledged for such the payment, and no bond or further security shall be required of the applicant.

(b) If the applicant shall enter enters upon or take possession of property under the authority of this section, and shall do does any work thereon and injure such injures the land or property, it shall may not be entitled, without the consent of the defendant, to abandon the proceedings for the condemnation thereof, but such the proceedings shall proceed to final award or judgment, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceedings, with interest at ten percent from the date of the filing of the petition.

(c) Before entry, taking possession, appropriation, or use, the applicant shall pay into court such the sum as it shall estimate estimates to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such the residue, by reason of the taking.

(d) When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, exceeds the amount which has been paid into court, the excess amount, together with interest thereon at ten percent from the date of the filing of the petition to the date of payment of the excess amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, has been confirmed and ordered to be recorded, be paid into court by the applicant for the persons entitled thereto.

(e) If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be is one, the excess shall be repaid to the applicant out of such the fund in court, or, if the amount remaining in the fund be insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest.

(f) If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be is one, does not exceed the sum paid into court and it shall appear that the latter amount was tendered by the applicant to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages.


§54-2-14a. Alternative method for condemnation by state or its political subdivision.

(a) Prior to any report by condemnation commissioners, or verdict of a jury, if the applicant be is the State of West Virginia or any political subdivision thereof, and be otherwise authorized by law to make payment as required in this section, on filing its petition as authorized in this article, and if the court or judge is satisfied that the purpose for which the property or interest or right therein, is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the applicant may thereupon acquire title to, and enter upon, take possession of, appropriate and use the property, or interest or right therein, sought to be condemned for the purposes stated in the petition by following the method provided in this section.

(b) Before entry, taking possession, appropriation, or use, the applicant shall pay into court such sum as it shall estimate the amount it estimates to be the fair value of the property, or estate, right, or interest therein, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such the residue, by reason of the taking. The court or judge may, at the request of any party to the proceeding, require the clerk of the court to give an additional bond, adequate to protect such the deposit with the clerk; and if such a bond is required, the applicant shall pay the necessary premiums.

(c) Upon such payment into court, the title to the property, or interest or right therein, sought to be condemned, shall be vested in the applicant, and the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the property, or interest or right therein, sought to be condemned for the purposes stated in the petition, but the owners of such the property, or interest or right therein, at the time of such payment, including lienors and conflicting claimants, shall have such the title, interest, or right in the money paid into court as they had in the property, or interest or right therein, sought to be condemned, and all liens by deed of trust, judgment or otherwise, upon such property, or interest or right therein, shall be transferred to such the fund in court, subject to the provisions of this section. The title in the applicant shall be defeasible until the compensation and any damages are determined in the condemnation proceedings and the applicant has paid any excess amount into court.

(d) Upon petition to the court or judge, any person entitled thereto may be paid his or her pro rata share of the money paid into court, or a portion thereof, as ordered by the court or judge, but the acceptance of such the payment shall may not limit the amount to be allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be is one. Proceedings for the distribution of the money so paid into court shall be conducted as provided in §54-2-18 of this code to the extent that the provisions therein are applicable. No party to the condemnation proceeding shall may be permitted to introduce evidence of such the payment or of the amount so paid into court, or of any amount which has been accepted by any party, nor shall reference be made thereto during the course of the trial.

(e) If the applicant shall enter enters upon or take takes possession of the property, under the authority of this section, and shall injure injures the property, the applicant shall not be is not entitled, without the consent of the defendant, to abandon the proceeding for the condemnation thereof, but such the proceeding shall proceed to final award or judgment, and the amount of compensation and any damages as finally determined in such the proceeding shall be paid in the manner provided by this section.

(f) When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, exceeds the amount which has been paid into court, the excess amount, together with interest thereon at ten percent from the date of the filing of the petition to the date of payment of the excess amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, has been confirmed and ordered to be recorded, be paid into court by the applicant for the persons entitled thereto. In no other instance shall interest be allowed on payments made pursuant to the provisions of this section. If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be is one, the excess shall be repaid to the applicant out of such the fund in court, or, if the amount remaining in the fund be is insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest. If the applicant has the right to abandon the proceeding and does so, the amount which has been paid into court pursuant to this section shall be repaid to the applicant from such the fund in court and by any persons to whom the fund, or any part thereof, has been paid, on a pro rata basis, but without interest.

(g) If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be is one, does not exceed the sum paid into court and it shall appear appears that the latter amount was tendered by the applicant to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages.

(h) When the report of the condemnation commissioners, or the verdict of a jury, if there be is one, has been confirmed and ordered to be recorded, and the excess amount, if any, has been paid into court as provided herein, the title to the property, or interest or right therein, so paid for shall be absolutely and indefeasibly vested in the applicant in fee simple or to the extent described in the petition: Provided, That in the case of a public road title to the right-of-way only shall absolutely vest in the applicant.


§54-2-15. Alternative procedure for condemnation by business corporation; bond.

(a) Any business corporation, entitled to exercise the powers of eminent domain under this chapter, may file with its petition a bond for a sufficient amount with good sureties, payable to the owner of the property proposed to be taken to secure to such the owner payment for such the property and all damages to which he or she shall be entitled for the taking thereof, and if the owner being sui juris shall appear and make no objection to such bond, the applicant shall be entitled to take possession of the property sought to be condemned, for the purposes stated in the petition. But if If objection be is made to the form, amount of, or sureties on, such the bond, or if the owner cannot be found, or is not sui juris, the court or judge shall fix a day for the hearing of any objections to such the bond and of the request of the applicant to approve the same; and at any time after five days’ written notice shall have has been given to the owner or to his or her guardian or committee, if he or she be not sui juris, and if the owner cannot be found, or his or her guardian or committee, the owner not being sui juris, then, after five days’ written notice posted upon the land, which notice shall state the time and place for such the hearing, the court or the judge shall proceed to hear and determine the matters arising upon such objection and request, and may require evidence as to the sufficiency of the surety or sureties and as to the sufficiency of the amount of the bond, and may, in its or his or her discretion, require new and additional sureties and a bond for a larger amount and in a more satisfactory form, and when satisfied as to the form, amount and sufficiency of such the bond and sureties, and that the purpose for which the property is to be appropriated is a public use for which private property may be taken upon compensating the owner, the court or judge shall approve the bond and make an order permitting the applicant to enter upon, take possession, appropriate and use the land or property sought to be condemned for the purposes stated in the petition. At any time during the subsequent proceedings on such petition, if it shall appear appears necessary so to do in order to protect the owner and assure unto him or her the payment of the compensation and damages to which he or she may be entitled, the court or judge may require the applicant to give a new and additional bond with sureties satisfactory to the court or judge.

(b) Any indemnity company authorized to transact business in the State of West Virginia shall be deemed a good and sufficient surety on any bond required under this section.

(c) If the applicant shall enter upon or take enters upon or takes possession of the property under the provisions of this section, and shall do does any work thereon, or cause any injury or damage to such the property, it shall not thereafter be entitled, without the consent of the defendant, to abandon the proceeding for the condemnation thereof, but the same shall proceed with reasonable dispatch to a finality and the applicant shall pay to the owner of the land the amount of the compensation and damages as finally determined in such proceedings, with interest at ten percent from the date of the filing of the petition as provided in §54-2-21 of this code.


§54-2-16. Increase or decrease in award after payment into court; costs.

(a) When, after such payment into court as is mentioned in §54-2-13 of this code, a subsequent report is made which is confirmed and ordered to be recorded, or the verdict of a jury is found, if the sum ascertained by such subsequent report or verdict exceed exceeds what was so paid, and the applicant fail fails to pay the same, judgment shall be given against it for the amount of such the excess, with ten percent interest thereon from the date of filing of the petition until payment, but if what was so paid exceeds the sum ascertained by such a subsequent report or verdict, the excess shall be repaid to the applicant out of the fund in court, or by the persons to whom the same shall have been it was paid. If the sum ascertained by such a subsequent report or verdict does not exceed the sum ascertained by the former report, the party on whose motion the former report was set aside, recommitted, or other commissioners appointed, or trial by jury demanded, if he or she be is a defendant therein, shall pay the costs occasioned by the motion, unless such the former report was set aside, recommitted or other commissioners appointed on some other ground than that of insufficiency of compensation.

(b) If the applicant has stated in his or her application the sum of money which he or she is ready to pay to the owners for any parcel of land proposed to be taken, and it appear appears by a report confirmed and ordered to be recorded, or by a verdict of a jury, that he or she is entitled to take such the parcel for the purpose mentioned stated in his or her application without paying any greater compensation therefor, he or she shall be adjudged his or her costs in respect to such the parcel, out of the compensation to be paid therefor to the owners.

(c) In cases not otherwise provided for, the applicant shall pay the costs of the proceedings.


§54-2-18. Payment to clerk; disposition of money paid into court; determination of conflicting claims; notice to condemnee.

(a) Payment of an award or judgment, or any money, under any of the provisions of this chapter may be made to the clerk of the court in which such proceeding is had, and such the payment shall be deemed to be a payment into court. Within ten  10 days after the payment of an award, judgment, or money into court pursuant to the provisions of this chapter, the condemnor shall serve notice upon the parties of record except nonresidents and unknown parties whose interests the applicant seeks to condemn, or upon their counsel of record. Service of notice by registered or certified mail to the parties’ last-known addresses shall be deemed sufficient. Notwithstanding any other provision of this chapter to the contrary, failure to serve such notice shall result in the accrual of interest at ten percent upon the award, judgment or money paid into court from the filing of the petition until such the notice is served or until disbursement be is made to the persons entitled thereto. The clerk to whom payment is so made, together with the surety on his or her official bond, shall be liable therefor, as for other moneys collected by him or her by virtue of his or her office.

(b) Upon money being paid into court, pursuant to the provisions of this chapter, and the court or judge being satisfied that the persons entitled thereto are before the court or judge, it or he or she shall make such distribution or disposition of such money as is proper, having due regard to the interest of all persons therein, and in what proportions such money is properly payable.

(c) If it shall appear appears that the petition states the persons or classes of persons, who, in the opinion of the applicant, are vested with the superior right or claim of title in the property, or interest or right therein, condemned or sought to be condemned or in the amount allowed or to be allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, and it does not appear from the record or otherwise that there is any denial or dispute, by any person or party in interest, of such statement in the petition, the court or judge may direct that the money paid into court, after withholding therefrom any sum necessary for payment of any taxes which are a lien upon the property, interest, or right, be disbursed and distributed in accordance with the statement in the petition, among the persons entitled thereto, except that with respect to any persons appearing to be infants, incompetents, incarcerated convicts, or under any other legal disability, the court or judge shall inquire into their rights or claims, independent of any statement in the petition, and any order for disbursement or distribution shall conserve and protect the rights or claims of such persons in and to the money paid into court.

(d) If it shall appear appears to the court or judge, from the record or otherwise, that there exists a controversy among claimants to the money paid into court, or to the ownership of the property, or interest or right therein, condemned or sought to be condemned, the court or judge shall enter an order setting a time for hearing the case and determining the rights and claims of all persons entitled to the money paid into court or to any interest or share therein. To aid in properly disposing of the money, the court or judge may appoint a commissioner to take evidence of the conflicting claims. The court or judge may direct publication to be made requiring all who are interested to appear at the time set for hearing the case to present their respective claims. Such The costs shall be allowed to the prevailing persons as the court or judge shall direct. Upon a determination by the court or judge of the rights and claims of the persons entitled to the money paid into court, with or without a report of such a commissioner, judgment shall be entered directing the disbursement or distribution, after withholding for taxes as provided in the next preceding paragraph, to the persons entitled thereto, provided that the rights or claims of persons under legal disability shall be protected as provided in the next preceding paragraph.


§54-2-21. Effective date of new percent interest rates.

The percent interest rate provided for in sections twelve, thirteen, fourteen, fourteen-a, fifteen, sixteen and eighteen of this article §54-2-12, §54-2-13, §54-2-14, §54-2-14a, §54-2-15, §54-2-16, and §54-2-18 of this code reenact shall be applicable only to condemnation proceedings hereafter instituted on and after the amendment and reenactment of those section in the 2021 Legislative session. The interest rate in all condemnation action brought under this article shall be assessed in accordance with the provisions of §56-6-31 of this code for judgments in civil actions. The rate of interest previously applicable to proceedings under the above sections shall continue to be applicable to condemnation proceedings heretofore instituted.

 

NOTE: The purpose of this bill is to conform the judgment interest paid in condemnation cases to the interest paid on all other civil judgments and decrees. The Supreme Court of Appeals of West Virginia sets the rate of interest in all civil actions, except condemnations, in January of each year. The interest rate is 2% above prime on January second each year not to exceed 9%. The 2020 interest rate is 4.75%.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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