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The Differences in "Quick-Take" and "Slow-Take" when Property is Condemned

By Henry Howell, III and Christi Cassel

There are two procedures for acquiring title to property. One procedure is called quick-take; the other is slow-take. Both types of take require the condemning authority to follow certain steps and procedures, governed by either Title 25.1 or Title 33.1 of the Code of Virginia. Title 33.1 applies to the Virginia Department of Transportation (VDOT).

Under the quick-take procedure, before filing a certificate of take, the condemning authority must perform, or have performed, a title search. The authority must give the property owner a title report, which identifies all of the owners of the property to be condemned. For condemnations involving land valued at greater than $10,000.00, the condemning authority must also retain the services of a licensed appraiser to provide a bona fide appraisal of the value of the property taken as well as the value of damage caused by the take to the value of the remaining property, if any. If there has been a total take, there is no remainder.

After the condemning authority obtains the title report and the bona fide appraisal, the condemning authority must first engage in good faith efforts to purchase the property. If efforts to purchase the property prove ineffectual, the condemning authority may gain defeasible title by filing a certificate of take or a certificate of deposit.

Once the certificate of take or deposit has been filed, the condemning authority obtains defeasible title to the property, allowing the authority to commence construction. The defeasible title is converted to indefeasible title once the condemning authority pays the property owner an amount to which the owner and the condemning authority agree or a court awards after a just compensation trial.

If the condemning authority uses the quick-take procedure, the condemning authority has six months to file its petition for condemnation to commence the just compensation trial process. After six months, the owner has the right to initiate the condemnation procedures for determining just compensation by the owner’s filing a petition for condemnation.

The slow-take procedure is similar to that of the quick-take procedure, as it starts with the requirements of a title report, appraisal, and bona fide effort to purchase the property. Should the effort be ineffectual, the slow-take begins with the condemning authority’s filing a petition for condemnation. The property owner answers the petition, and trial is held to determine just compensation. A judge, or a jury of fee simple owners who are residents of the condemning authority, are authorized to determine just compensation. The property owner has the right to elect a jury to determine just compensation.

With due diligence, a trial on just compensation can normally occur within a year of filing a petition for condemnation. Condemnation cases under the law should be given priority on the Court’s docket.

Condemnation proceedings are generally governed by Title 25.1 of the Virginia Code. There are certain special procedures that apply to the Virginia Department of Transportation (VDOT) under Title 33.1. Title 25.1 governs the actions of most condemning authorities. The quick-take procedures are in Chapter 3, which is found at Virginia Code §25.1-300, et seq. The slow-take procedures and some general procedures for condemnation trials are in Chapter 2 of Title 25.1.

Under laws governing counties and their use of the power of condemnation, there are certain procedures a condemning authority must follow when using the procedures of quick-take that are applicable only to counties. These involve certain resolutions that the condemning authority must pass before initiating condemnation. These procedures can be found in the Code if Virginia §15.2-1905. Some cities have condemnation procedures in their charters that are generally consistent with the requirements of Title 25.1.

Chapter 4 of Title 25.1 of the Virginia Code includes a number of rights property owners have under the Relocation Assistance and Real Property Acquisition Policies Act, which follows federal law. Virginia is required to have this act to obtain federal funds that may be used for projects involving condemnation of property.