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Serving The Needs Of Washington Bankers Since 1889 COUNSELOR’S CORNER Considerations for Banks Named as Parties in Eminent Domain Actions By Janis G. White & Charles F. Hudson, Lane Powell three phases: (1) adjudication of public use and necessity, (2) determination of just compensation to be awarded to the owner, and (3) payment of just compensation and transfer of title. In the first phase, the court must determine whether the proposed acquisition is actually for a public use and whether the acquisition is reasonably necessary under the circumstances. Challenges to public use and necessity are rare, but do occasionally occur. Lenders should monitor the public use and necessity phase of the case to make sure that the property owner raises any valid objections. Eminent domain or condemnation is the process by which the government is permitted to acquire a citizen’s private property, with due monetary compensation, for public use. Typically, property is acquired by the government through the use of eminent domain for public projects such as highways, parking structures, public utilities, public buildings and railroads. Section 16 of the Washington State Constitution states, “No private property shall be taken or damaged for public or private use without just compensation having been first made ...” More importantly, the lender will want to be sure the borrower/property owner presents strong arguments during the second phase, which is the primary trial on just compensation. The lender may not argue its particular interest at that stage, only the value of just compensation for the taking as a whole, assuming a single fee simple owner. Following the trial and absent agreement between the lender and the borrower, there is a post-trial apportionment hearing before the court sitting in equity (without a jury) to determine the lender’s share of the just compensation award. Property that is subject to being acquired by eminent domain is often encumbered by one or more loans. Lenders are required to be joined as parties in condemnation actions under Washington law. The lender has the right to obtain counsel and participate in the case along with the property owner and any other parties who have an interest in the property. Condemnation cases have 25 Most banks rely on the borrower’s counsel to make sure the just compensation award is appropriate during condemnation proceedings and that they do not engage separate counsel. Most of the time, that is an intelligent choice that saves legal expense. However, banks should not automatically July/August 2011 ⏐
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