WEST virginia legislature
2021 regular session
Introduced
Senate Bill 491
By Senators Clements and Lindsay
[Introduced March 1, 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 adjusting the interest rate to be paid in condemnation cases; changing the rate of interest from a fixed percentage to a floating rate tied to a federal discount rate; and updating language to meet modern legislative drafting 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 §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 is 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 is 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 §54-1-10-of this code, wood,
earth, gravel, shale, stone, water or other material are sought to be taken,
impounded or consumed, the applicant may, after such report has been
made, whether it be is set aside, recommitted or new
commissioners appointed, or not, or whether a trial by jury be is
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 case.
§54-2-14. Entry by state or its political subdivisions.
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 sufficient security and to have been pledged for
such payment, and no bond or further security shall be required of the
applicant.
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
the land or property, it shall 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.
Before entry, taking
possession, appropriation, or use, the applicant shall pay into court such
the sum as it shall estimate the applicant 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 residue, by reason of the taking.
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 is 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.
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 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.
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.
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 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 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.
Before entry, taking
possession, appropriation, or use, the applicant shall pay into court such
sum as it shall estimate the amount the applicant 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 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 bond is required, the applicant
shall pay the necessary premiums.
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 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.
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 payment shall 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 be is 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.
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.
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 is 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.
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.
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.
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 been given to the owner or to his or her
guardian or committee, if he or she be is 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 the 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 the 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.
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.
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.
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 the subsequent report or
verdict exceed 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
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 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 be or
she is a defendant therein, shall pay the costs occasioned by such of
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.
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 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 parcel, out of the
compensation to be paid therefor to the owners.
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.
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 payment
shall be deemed to be a payment into court. 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 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.
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 the
money as is proper, having due regard to the interest of all persons therein,
and in what proportions such money is are properly payable.
If it shall 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 is
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.
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 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
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 referenced 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 applicable
only to condemnation proceedings hereafter instituted assessed in
accordance with the provisions of §56-6-31 of this code for judgments in civil
actions and shall be applicable to condemnation proceedings instituted on or
after July 1, 2021. The 10 percent rate of interest previously
applicable to proceedings under the above above-referenced
sections shall continue to be applicable to condemnation proceedings heretofore
instituted prior to July 1, 2021.
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 two percent above prime on January second each year not to exceed nine percent. The 2020 interest rate is 4.75 percent.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.