5-15.001
Area of Responsibility
The Land Acquisition Section is responsible for the institution and
prosecution of condemnation proceedings on behalf of the United States, and for
approving title to land acquired by the United States by purchase or
condemnation.
5-15.002
Policy Regarding Consent to Trial of Condemnation
Cases by United States Magistrate
It is the policy of the Division to encourage, in appropriate cases,
consent to the conduct of condemnation trials by United States Magistrates
if the attorney in charge of the case determines that trial before a
magistrate would be in the litigating interests of the United States. For a
complete statement of this policy, see ENRD
Resource Manual at 3.
5-15.003
Policy Regarding Use of Alternative Dispute Resolution in Condemnation Cases
It is the policy of the Division to encourage, in appropriate cases, use
of alternative dispute resolution in the conduct of litigation, including
condemnations. For more information regarding ADR, consult the Office of
Dispute Resolution (website at
http://www.usdoj.gov/odr).
[added July 2004]
5-15.100
Prior Approval Requirements
Prior approval requirements for the Land Acquisition Section are set
forth in USAM 5-2.000.
5-15.200
Organization of Land Acquisition Section
The Section is administered by a Chief and one or more Assistant
Chiefs. The Section is divided into a number of units.
- Litigation Unit. Attorneys assigned to the Litigation
Unit litigate eminent domain cases for which responsibility is retained by
the Land Acquisition Section. They also monitor and consult with
responsible Assistant U.S. Attorneys on pre-trial, trial and post-trial
activities in eminent domain cases where responsibility has been delegated
to a U.S. Attorney's Office by the Land Acquisition Section.
- Title Unit. The Title Unit prepares opinions of title for land
acquired by the United States by purchase pursuant to the provisions of 40
U.S.C. § ;3111.
- Appraisal Unit. The Appraisal Unit is staffed by professional
real estate appraisers. It reviews appraisals, settlement proposals and
appraisal guidelines for cases in condemnation and provides assistance to
Section attorneys and United States Attorneys in trial preparation and
procedures.
[updated July 2004]
5-15.201
Statutes Administered
Much of the litigation of the Land Acquisition Section is conducted pursuant
to the following authorities:
- Act of August 1, 1888, c. 728, § ;1, 25 Stat. 357, as
amended, 40 U.S.C. § ;3113 (Condemnation Act);
- Act of February 26, 1931, c. 307, § ;1, 46 Stat. 1421, 40 U.S.C. § 3114 (Declaration of Taking Act);
- Rule 71A, Fed.R. Civ.P.;
- 16 D.C. Code §§ ;1351-1368 (1973 ed.) (federal land acquisition in the
District of Columbia);
- Joint Resolution of September 11, 1841, 5 Stat. 468, as amended, 40
U.S.C. § ;3111 (Examination of Title Act).
[updated July 2004]
5-15.300
Supervision and Handling of Land Acquisition Section CasesDirect Referral Cases
Actions to acquire land may not be initiated by a United
States Attorney except upon their referral to him/her by the Attorney General,
through the Land Acquisition Section. In other words, land acquisition cases
may not be referred directly to United States Attorneys by acquiring
agencies.
[cited in USAM 5-15.520]
[updated July 2004]
5-15.320
Assignment of Case Responsibility
The extent to which a United States Attorney is responsible for
handling any condemnation case is determined by the Land Acquisition Section. Condemnation matters are classified into
two categories, as described at USAM 5-15.321
and 5-15.322. A case may be reclassified at any time due to changed
circumstances.
[updated July 2004]
5-15.321
Category 1 Matters
Category 1 consists of cases in which there are no actual or
anticipated policy questions, peculiar appraisal problems, novel legal questions,
or claimed compensation in excess of $1,000,000. United States Attorneys will have
full responsibility for Category 1 cases, subject only to:
- Such assistance on tactical or legal matters as they may request
from the Land Acquisition Section; and
- Approval of the Department of Justice of any settlements in excess of
$1,000,000 or under that amount when:
- For any reason, the compromise of a particular claim, as a practical
matter, will control or adversely influence the disposition of related claims
totaling an amount in excess of $1,000,000; or
- The revestment under 40 U.S.C. § 3117 of any land or improvements
or any interests in land is involved, except in cases in which the land owner
desires to remove buildings, trees and shrubs, crops, or fixtures attached to the
realty which are not needed or desired by the government, provided that the
exclusion has been approved by the local representative of the acquiring agency;
or
- Because a novel issue of law or question of policy is presented, or for any
other reason, the settlement offer should receive the attention of the
Environment and Natural Resources Division of this Department.
The United States Attorney should send copies of court papers to the
Land Acquisition Section for information, comment, and suggestions as the
case proceeds, and should cooperate in the reasonable implementation of all
suggestions made.
[cited in USAM 5-15.320]
[updated July 2004]
5-15.322
Category 2 Matters
Category 2 consists of cases in which there are actual or anticipated
policy questions, peculiar appraisal problems, novel legal questions, or
claimed compensation in excess of $1,000,000. Category 2 cases may be (1)
the full responsibility of the Land Acquisition Section; (2) the joint
responsibility of United States Attorneys' Offices and the Land Acquisition
Section; or (3) the full responsibility of United States Attorney's Offices,
subject to the consultation and reporting requirements set forth throughout
USAM 5-15.000 et seq. The participation of the Land Acquisition Section
may range from mere counsel and advice, on the one hand, to management of
the case on the other, depending upon national interests. The provisions of
USAM 5-1.324 are applicable to Category 2
matters.
[cited in USAM 5-15.320]
[updated July 2004]
5-15.500
General Procedures in Land Acquisition Litigation
The instructions herein set forth deal in broad terms with general
procedures peculiar to condemnation litigation.
5-15.511
Rule 71A, Federal Rules of Civil Procedure
Rule 71A of the Fed.R. Civ.P. governs the procedure to be followed in
all cases for the condemnation of property under the power of eminent
domain. All condemnation cases must be prosecuted in strict conformity with
this Rule. Rule 71A provides that the general Fed.R. of Civ.P. shall be
applicable to all cases, except as otherwise provided in Rule 71A.
[updated July 2004]
5-15.512
Declaration of Taking Act
The Declaration of Taking Act (see 40 U.S.C. § 3114)
authorizes the United States to acquire an interest in land immediately upon the
filing of a declaration of taking with a court and the deposit in the court of
the estimated compensation stated in the declaration.
United States Attorneys must comply promptly with instructions from
the Land Acquisition Section for filing of a declaration of taking and the deposit of
estimated just compensation pursuant to the Declaration of Taking Act
(see 40 U.S.C. § 3114). The final judgment should contain a
finding by the court of the filing of the declaration of taking and the
deposit of estimated compensation, the dates thereof, and an adjudication
that title to the exact extent of the estate or interest described in the
declaration is vested in the United States. The judgment should also
contain an order for the surrender of possession if requested by the
acquiring agency. The case must be prosecuted to a speedy conclusion in
order to minimize the amount of interest which the government must pay on
the amount of the ultimate award in excess of the deposit.
Under the Declaration of Taking Act and Rules 71A(c)(2) and (j), Fed.R.
of Civ.P., the court may order that the money deposited as estimated
compensation, or any part thereof, shall be paid forthwith to the rightful
claimant. The purpose of the Declaration of Taking Act is, first, to give the
government title to and possession of the land and to relieve the government of
the burden of interest accruing on the amount of the deposit, and second, and of
equal importance, to make funds available for immediate distribution to the
former owner in the discretion of the court.
In furtherance of this purpose and in accordance with Rule 71A(j),
Fed.R. of Civ.P., United States Attorneys are required
actively to assist landowners and the court, as amici curiae in effecting prompt
distribution of funds deposited pursuant to the Declaration of Taking Act.
Detailed instructions with respect to distribution are set forth in the ENRD Resource Manual at 13.
Immediately upon the filing of a declaration of taking and the deposit
of estimated compensation, the landowner and other parties interested should be
notified by letter, by the United States Attorney of the
deposit and the amount thereof and that government counsel will render assistance
in effecting advance distribution without prejudice to the right of the landowner
to claim a larger amount. A form letter with which there should be substantial
conformance is found at the ENRD Resource Manual at
28.
[cited in USAM 5-15.544]
[updated July 2004]
5-15.514
Division Programs to Expedite Handling of Condemnation Cases
The Division has developed a program called the "Nine-Point Program for
Settlement or Trial Within a Year" as a means of expediting the handling of
condemnation cases. Details with respect to this program are set forth in the
ENRD Resource Manual at 2. United States Attorneys
are urged to become familiar with this program and to the fullest extent possible
to process land acquisition cases in their districts in this methodical way.
The Division issued a memorandum dated June 6, 1980, to all United
States Attorneys, announcing the Department of Justice policy favoring consent
to trial of land condemnation cases by United States Magistrates in appropriate
circumstances, as defined in 28 U.S.C. § 50.11. The policy furthers the
goals of the Federal Magistrates Act of 1979 (Pub.L. 96-82) and will also serve
to expedite trial in appropriate circumstances. All attorneys in the United
States Attorneys' offices are encouraged to seek the consent of parties to
trials, either by a magistrate or by a jury presided over by a magistrate, in
appropriate cases. For a detailed statement of the Division's policy in
this regard, see the ENRD Resource Manual at 3.
[updated July 2004]
5-15.515
Transmittal of Papers to the Land Acquisition Section
The Land Acquisition Section must be informed promptly of all major
steps taken in each case, such as the entry of scheduling orders, the dates
of all trials and hearings and the results thereof, and the filing by the
United States Attorney and any defendant of a notice of appeal or a motion
for new trial. It is essential that there be strict observance of the
foregoing rule.
[updated July 2004]
5-15.516
Transmittal of Record
The United States Attorney shall transmit to the Land Acquisition
Section, at the stages of the case hereinafter designated, successive
partial transcripts to be combined at the conclusion of the case into a
complete transcript of record. No documents included in one transcript need
be duplicated in any subsequent transcript.
- Initial Transcript. Upon the institution of the case there
shall be transmitted to the Land Acquisition Section an initial transcript,
which shall contain the following documents:
- One copy of the complaint (see
ENRD Resource Manual at 24 or 25);
- One copy of the notice of condemnation (see
ENRD Resource Manual at 27);
- If a declaration of taking is filed, one copy of the dated receipt of
the clerk of the court for the money deposited as estimated
compensation;
- If an order of possession (see
ENRD Resource Manual at 44) is obtained, one copy of the order;
- One copy of any other papers filed in connection with the institution of the
case; and
- One copy evidencing recordation of the declaration of taking and/or lis
pendens in the local land records.
- Intermediate Transcript. Upon the entry of any judgment determining
just compensation there shall be transmitted to the Land Acquisition Section
an intermediate transcript consisting of:
- One copy of the judgment together with a copy of the letter of
transmittal if the judgment has been transmitted with a request for payment
of a deficiency amount to the local representative of the acquiring agency
as authorized at USAM 5-15.582;
- One copy of all papers of whatever nature filed in the case
prior to and including the date of entry of the judgment (but excluding
copies of papers included in transcripts previously transmitted to the
Land Acquisition Section);
- The evidence of title, properly continued, see
USAM 5-15.533; and
- The certificate as to parties in possession and mechanics' liens.
See USAM 5-15.536.
- When an intermediate transcript is transmitted to the Land Acquisition
Section, the United States Attorney should state in the letter of
transmittal that the transcript constitutes, or when combined with partial
transcripts previously transmitted will constitute, a complete transcript of
the record of the case to date. If there is no deficiency the intermediate
transcript may be combined with the final transcript.
- Final Transcript. Upon the entry of a final judgment there shall be
transmitted to the Land Acquisition Section a final transcript consisting
of:
- One copy of the initial judgment, unless copies of the judgment
were previously transmitted to the Land Acquisition Section with the
intermediate transcript;
- One copy of the dated receipt of the clerk of the court for
any additional money deposited pursuant to a judgment determining
compensation;
- The evidence of title, properly continued as provided in USAM 5-15.533;
- All other related papers and curative data pertinent to the proceeding,
such as affidavits, deeds, disclaimers (See ENRD Resource Manual at 49), releases, etc.,
necessary to show resolution of each defendant's claim;
- Evidence that distribution or retention by the court clerk for five
years pursuant to 28 U.S.C. § 2042 has been ordered of all funds which have
been deposited in court by the government; and
- One copy of the final judgment vesting title in the United
States.
[cited in USAM 5-15.536;
ENRD Resource Manual 19]
[updated July 2004]
5-15.520
Institution of ActionsInitial Documents Sent to United States Attorney
United States Attorneys will be advised when they have been authorized
by the Land Acquisition Section under delegation of the
Attorney General to acquire land on behalf of a federal agency.
Accompanying the authorization to the United States Attorney to acquire the land
will usually be the following documents:
- A copy of the government official's letter to the Attorney General
requesting the institution of condemnation proceedings, and citing the authority
for the taking;
- Where immediate title is required, a declaration of taking and one copy
thereof, to which will be attached a description of the land to be acquired and
a map showing the land;
- In cases where a declaration of taking is to be filed, a check for the
estimated compensation, or instructions indicating how the check may be obtained;
and
- Advice as to classification of the case and division of responsibility for
the prosecution of the case between the United States Attorney and attorneys in
the Land Acquisition Section. SeeUSAM 5-15.300 et seq.
On occasion the letter of transmittal may contain special instructions
which will govern procedure if at variance with anything contained herein.
[updated July 2004]
5-15.522
Preparing and Filing Complaints
Upon receiving the letter authorizing the initiation of an action to
condemn land, the United States Attorney shall:
- Secure from the acquiring agency the materials described in the
ENRD Resource Manual at 4.
- Prepare the documents described in the ENRD
Resource Manual at 5; and
- File the complaint pursuant to the instructions in the ENRD Resource Manual at 6.
5-15.523
Land Subject to Options or Contracts of Sale by Acquiring Agency
When the land involved in a condemnation case is the subject of a
valid accepted option or contract of sale, executed both by the presumptive
owners and by a duly authorized representative of the acquiring agency prior
to the institution of the condemnation case, the accepted option or contract
is binding upon the signatories thereto in the condemnation case. The
accepted option or contract should be pleaded in the complaint in
condemnation. The United States Attorney is authorized without the prior
approval of the Attorney General to have a judgment entered in the amount of
the accepted option or contract provided that the local representative of
the acquiring agency has advised in writing that the land has not decreased
in value due to any action of the owners since the date of the option or
contract, and all special and unusual conditions and requirements of the
option or contract, if any, have been performed. It is also necessary that a
determination shall have been made that the optionors in the accepted option
or the vendors in the contract of sale are the sole and only parties
entitled to the just compensation, other than taxing authorities,
lienholders and encumbrancers whose claims may be satisfied from the
award.
The procedure for summary judgements under Rule 56, Fed. R. Civ. P., should
be utilized in obtaining the entry of consent judgements on options and contracts
of sale, but only after the expiration of the time for filing of answers or
appearance by defendants, see USAM
5-15.540 and 5-15.542.
[cited in
ENRD Resource Manual 7;
ENRD Resource Manual 11]
[updated July 2004]
5-15.524
Notice to be Recorded in Local Land Records
In conclusion with the institution of condemnation proceedings, a notice of
the pendency of the action, sometimes called a lis pendens shall be filed
or recorded among the proper local records, except in any juridiction
where the law is settled that the commencement of the action is notice to
all persons affected. If more than one county or other recording
jurisdiction is involved, a separate notice is necessary for each.
The steps necessary for the commencement
of record notice are determined by the law of the particular state
where the land is located. In some states, it may be advisable to record
both a lis pendens and either the declaration of taking or (in a
complaint-only case) the final judgment vesting title in the United
States.
[cited in USAM 5-15.530;
USAM 5-15.537;
ENRD Resource Manual 5;
ENRD Resource Manual 6;
ENRD Resource Manual 7]
[updated July 2004]
5-15.525
Service
Service of the notice of condemnation must be made in accordance with
Rules 4(c) and (d), Fed.R. of Civ.P. A copy of the complaint need not be
served with the notice of condemnation.The Soldiers' and Sailors' Civil
Relief Act of 1940 (54 Stat. 1178), as amended, is in full force and effect
and is applicable to condemnation cases. The United States Attorney must
investigate to determine whether any defendant who has not answered or filed
an appearance is in military service with the Armed Forces or is in public
Health Service on duty with the Armed Forces. The United States Attorney
must comply strictly with the provisions of the Act by filing necessary
affidavits and moving for the appointment of an attorney ad litem, when
required.
Complete instructions with respect to service are set forth in the
ENRD Resource Manual at 8.
[cited in
ENRD Resource Manual 2;
ENRD Resource Manual 7;
ENRD Resource Manual 8]
[updated July 2004]
5-15.526
Possession
Where a declaration of taking has been filed, United States Attorneys
must comply with instructions from the Land Acquisition Section requesting
the entry of an order for the surrender of possession of property to the
government. See ENRD Manual at 44. Unless
the property is vacant the acquiring agency should be requested to advise that
the necessary 90 days' written notice has been given of the date by which
possession is required if any person lawfully occupying the property shall be
required to move from a dwelling or to move his/her business or farm operation,
as required by Section 301(5) of Public Law 91-646, approved January 2, 1971, 84
Stat. 1905. Notice of the entry of the order (ENRD
Resource Manual at 44), and of the date provided therein for the surrender
of possession are controlled by Rules 5 and 77(d), Fed.R. Civ.P. Service of a
copy of the order should be made upon the person in possession of the land
in accordance with Rule 5(b), Fed.R. of Civ.P., or service should be made in
the manner and within the time directed by the court in the order.
If the party in possession refuses to surrender possession as provided
in the order, application should be made, in accordance with Rule 70, Fed.R.
Civ.P., for a writ of assistance to put the government in possession.
Application for a citation in contempt under Rule 70 should not be made without
the prior approval of the Land Acquisition Section.
[cited in
ENRD Resource Manual 5]
[updated July 2004]
5-15.530
Title EvidencePurpose
Rule 71A(c), Fed.R. Civ.P., provides that there shall be named
defendants in condemnation cases all persons having or claiming an interest
in the property condemned whose names can be ascertained by a reasonably
diligent search of the local land records, considering the character and
value of the property involved and the interest or estate to be acquired.
Persons having an interest in property include those owning an estate in the
land (e.g., fee owner, lessee, tenant) and those having a lien or
encumbrance on the land (e.g., mortgagee, taxing authority, material person,
mechanic). Evidence of title must, therefore, be obtained and examined for
a determination of the necessary and proper parties defendant. Persons
having (or claiming) an interest in the property at the time of the
commencement of record notice, see
5-15.524 are necessary parties and must be joined in the action as
defendants. By joining as defendants all persons disclosed by the title
evidence as having a possible interest in the property as of the
commencement of record notice, and, in the course of proceedings, by
giving those parties notice and opportunity to be heard at the trial or
hearing on just compensation, due process will have been afforded and the
final judgment will be res judicata as to those parties. If the United
States secures a judgment of condemnation fixing compensation and ordering
distribution to the wrong person or to fewer than all persons entitled
thereto, the party having a compensable interest who was omitted from the
proceedings has been denied due process and is entitled to bring an action
against the United States for just compensation. The United States may thus
be compelled to pay twice for the same acquisition. Where the interest of
the omitted party was a matter of record but was not disclosed by the title
evidence, the United States may recover its loss from the title company or
abstracter up to the limit of liability. See USAM 5-15.534.
[cited in USAM 5-15.536;
ENRD Resource Manual 4]
[updated July 2004]
5-15.532
Title Evidence Supplied by Acquiring Agency
In condemnation proceedings the necessary evidence of title is made
available to the Department by the acquiring agency. Since title insurance
is the most commonly used form of title evidence, it is likely that the
initial or preliminary title evidence will be in the form of a title
commitment or binder, and the final title evidence (see USAM
5-15.533) will be in the form of a title insurance policy. However, other
forms of title evidence, such as abstracts or Certificates of Title
(see ENRD Resource Manual at 48), are also acceptable. Copies of
recorded documents reported may accompany the commitment, or if not, may be
requested. Detailed guidelines for the preparation of title evidence in
land acquisitions by the United States of America are found in the Title
Standards 2001, a copy of which may be found on the Internet at:
http://www.usdoj.gov/enrd/Legal_Topics/Legal_Docs_Title_Standards.html. Attention is directed to Section 7.
Title Evidence for Condemnation Cases.
[updated July 2004]
5-15.533
Continuation of Title Evidence
The evidence of title must be continued to a date subsequent to the
recordation of the lis pendens or declaration of taking. On the basis of
information, if any, disclosed by the continuation of the evidence of title,
and the certificate of inspection and possession (see USAM 5-15.536), any additional parties shown
by the continuation to have, or who may claim to have, any interest in the
estate taken must be joined as defendants in the case, and any changes
in the naming of necessary and proper parties defendant must be effected.
The procedure for adding, dropping, or substituting parties is by motion and
order under Rules 21 and 71A(g) and (i)(3), Fed.R. Civ.P. An amended
complaint need not be filed. Detailed instructions with respect to
continuing title evidence are set forth in the ENRD
Resource Manual at 7.
[cited in USAM 5-15.516;
ENRD Resource Manual 2]
[updated July 2004]
5-15.534
Title EvidenceTitle Company Liability
Title evidence, in addition to being properly continued, must also
comply with the Department's requirements with respect to the limitation of the
title company's liability.
Generally, certificates of title (ENRD
Resource Manual at 48), and title insurance policies shall not limit the
liability of the title company to a sum less than 50% of the reasonable value of
the property. As to acquisitions valued at more than $100,000, the limitation of
liability of the issuing title company under the certificate of title or title
insurance policy may be limited to 50% of the first $100,000 and 25% of that
portion of the value in excess of that amount.
The "reasonable value of the property," in the context of condemnation
proceeding, is the amount awarded as just compensation in the judgment. Where
the title company has limited its liability to a sum substantially less than that
permitted, an endorsement to the certificate or policy must be obtained from the
title company providing for an acceptable amount of coverage. (Reasonable
compliance with the requirements as to the percentage limitation of liability is
all that is required.)
Recitations in the title evidence that the limitation of liability is
"as per agreement," "to be agreed upon," or the like, are unsatisfactory. In
such instances it will be necessary to obtain an endorsement providing adequate
coverage in a stated dollar amount. Title evidence that does not state dollar
amounts of coverage, but states that coverage is in "the amount of the award" or
a stated percentage (not less than permitted) of the award, is acceptable.
[cited in USAM 5-15.530]
[updated October 2001]
5-15.535
Title EvidenceCertification of Ownership
It is essential that the title evidence disclose the names of the
persons in whom title was vested at the time of commencement of notice.
See USAM 5-15.530. This should present
no problem in cases instituted by complaint only.
In cases in which a declaration of taking has been filed and the
declaration itself has been recorded, the continued evidence of title
typically recites that title to the property as of the effective date
thereof is vested in the United States of America, followed by an
appropriate reference to the recordation of the declaration. However, such a
recitation must also be accompanied by a statement that, prior to the filing
for record of the declaration, title was vested in a named person or
persons. An example of satisfactory wording which might appear in Schedule
A of a title policy when a Declaration of Taking has been filed is as
follows:
Title to the estate or interest in the land is vested in:
THE UNITED STATES OF AMERICA
Immediately prior to the acquisition of title by the United States, title
was vested in John Everyman and his wife, Matilda, as tenants by the
entirety, by a deed dated December 6, 1999, recorded December 7, 1999, in
Book 1156, page 138, among the land records of Fairfax County, Virginia.
Without such a certification by the title company as to prior ownership,
it cannot be ascertained whether actual last record owner of the property
has been made a defendant in the action.
Schedule B of the final policy must include a reference to the recorded
declaration of taking, judgment or notice of lis pendens. It should also include
exceptions to all other matters which affect the land, including those
previously revealed in the commitment and those which were discovered of
record subsequent to the effective date of the commitment but prior to the
time of the recording of the declaration of taking or lis pendens. If
matters revealed in the commitment were released or otherwise satisfied of
record before the filing of the lis pendens, they may be deleted from the
final title policy. Any new parties in interest revealed by the updated
title evidence should be joined in the action.
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