WEST virginia legislature
2018 regular session
Introduced
Senate Bill 466
By Senators Trump and Boso
[Introduced February
2, 2018; Referred
to the Committee on the Judiciary; and then to the Committee on Finance]
A BILL to amend and reenact §54-2-12, §54-2-14, §54-2-14a, §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 for other civil cases; and revising antiquated language to meet current 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 will be assessed in
accordance with the provisions of §56-6-31 of this code.
§54-2-14. Entry by state or its political subdivisions.
If the applicant be 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 sufficient security and to have been pledged for
such payment, and no bond or further security shall be required of the
applicant
(a) If the court is satisfied that the purpose for which the state or its political subdivisions seek to condemn property or an interest in property, is a public use for which private property may be appropriated after compensating the owner, the court shall, when requested by the applicant, enter an order permitting the applicant to immediately enter upon, take possession, appropriate and use the land for the purposes stated in the petition, The money paid into the court by the applicant as its estimated fair market value for the property is sufficient security and will be pledged for payment to the landowner. No bond or further security is required of the applicant.
(b) If the applicant shall enter enters
upon or take takes possession of property under the authority of
this section, and shall do does any work thereon and injure
such which 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 sum as it shall estimate to be
its estimate of 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 residue, by
reason of caused by the taking.
(d) When, after payment into court as provided under
the authority of this section If the amount allowed by the report of
the condemnation commissioners, or the verdict of a jury, if there be is
one, exceeds the amount which has been paid into court, the excess amount,
together with interest thereon at ten percent at the rate specified
in §56-6-31 of this code from the date of the filing of the petition to the
date of payment of the excess amount into court, may, at any time may
be paid 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 one, the
excess shall be repaid to the applicant out of such 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 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 If the applicant is the
State of West Virginia or any political subdivision thereof, and be which
is 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 proposed condemnation 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 to be
the its estimated 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 residue, by
reason of due to the taking.
(c) 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 deposit with the clerk; and if such bond is
required, the applicant shall pay the necessary premiums.
(d) 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 The court 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.
(e) but the The owners of such the
property being condemned, or interest or right therein, at the time of such
the payment, including lienors and conflicting claimants, shall have such
any 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.
(f) 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.
(g) 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
(h)
Acceptance of the payment shall
does not limit the amount to be allowed by the report of the
condemnation commissioners, or the verdict of a jury. if there be one
(i) 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 be permitted to introduce evidence of such 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.
(j) If the applicant shall enter enters
upon or take possession of the property, under the authority of this section,
and shall injure injures the property, the applicant shall not
be entitled, may not, without the consent of the defendant, to
abandon the proceeding for the condemnation. thereof, but such The
proceeding shall be paid in the manner provided by this section.
(k) 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 at the rate specified in
§56-6-31 of this code 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.
(l) 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 one,
the excess shall be repaid to the applicant out of such fund in the
money deposited with the court. or, if 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.
(m) 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 fund in the
money deposited with the court pursuant to this section shall be repaid to
the applicant from such 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.
(n) If the amount allowed by the report of the
condemnation commissioners, or the verdict of the jury, if there be 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.
(o) When the report of the condemnation commissioners, or
the verdict of a jury, if there be 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.
§54-2-16. Increase or decrease in award after payment into court; costs.
(a) When, after such payment into After payment
has been made to the court as is mentioned provided 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 amount awarded
exceeds what was so paid, and the applicant fail fails
to pay the same difference, judgment shall be given against it
for the amount of such excess, with ten percent interest thereon at
the rate specified in §56-6-31 of this code from the date of filing of the
petition until payment. but if If what was so paid exceeds
the sum ascertained by such amount awarded in the 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 paid who
were paid. If the defendant moved that the previous report be set aside,
recommitted, other commissioners be appointed or for a jury trial, and the sum
ascertained by such amount awarded in the subsequent report or
verdict does not exceed the sum ascertained by the former report amount
previously awarded, the party on whose motion the former report was set
aside, recommitted, or other commissioners appointed, or trial by jury
demanded, if he be a defendant therein the defendant shall pay the
costs occasioned by such 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 its
application the sum of money which he it is ready to pay to the
owners for any parcel of land proposed to be taken, and it appear by a the
confirmed and recorded commissioner’s report confirmed and ordered to be
recorded, or by a verdict of a jury, that he is entitled to take
such parcel for the purpose mentioned in his application without paying does
not award any greater compensation therefor, he it
shall be adjudged his its costs in respect to such 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, constitutes and such payment shall be
deemed to be a payment into court.
(b) Within 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 of a hearing for the distribution or disposition of the award or judgment upon the parties of record except nonresidents and unknown parties whose interests the applicant seeks to condemn, or upon their counsel of record.
(c) Service of notice by registered or certified mail to
the parties' last- known addresses shall be deemed is 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, at the rate specified in §56-6-31 of this code, judgment
or money paid into court from the filing of the petition until such notice is
served or until disbursement be 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.
(d) 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
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.
If it shall appear 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
(e) The court may direct that the money paid into court, less payment for any property taxes that are due, be disbursed or distributed in accordance with the parties named as defendants in the petition if:
(1) It appears to the court that the applicant has named persons or classes of persons who the applicant believes are vested with the superior right or claim of title in the property to be condemned; and
(2) It does not appear from the record, or otherwise, that there is any denial or dispute, by any party in interest as to ownership or pro rate share of the proceeds.
(f) If it appears to the court that any defendant is under a legal disability because he or she is a protected person, an infant, or incarcerated, the court shall inquire into their rights or claims, independent of any statement in the petition. Any order for disbursement or distribution shall conserve and protect the rights or claims of such persons to the money paid into court.
(g) If it shall appear to the court or judge appears
to the court, 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 to determine the rights and claims of all
persons entitled to the money paid into court or to any interest or share
therein.
(h) 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 costs The costs of publication
shall be allowed to the prevailing persons as the court or judge shall
direct directs.
(i) 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 property
taxes that may be due. 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 §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, shall be are applicable only to
condemnation proceedings hereafter instituted on and after the
amendment and reenactment of those sections during the 2018 Legislative session.
The rate of interest previously applicable to proceedings under the above
those sections shall continue to be applicable to condemnation
proceedings heretofore instituted.
NOTE: The purpose of this bill is to bring the statutory interest rate to be paid in condemnation cases into conformity with current statutory rates for other civil cases. The bill revises antiquated language to meet current legislative standards.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.