Did you know that if your property has been taken by the government, whether it be a total taking of your entire property in fee, or whether it be for an easement, you are entitled to just compensation and, possibly, delay compensation? 

Just compensation is the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and and the fair market value of the property interest remaining immediately after the condemnation and as affected by the condemnation.  Fair market value is the price which would be agreed to by a willing and informed seller and buyer, considering the following factors: 

  • present use of the property and its value for that use; 
  • highest and best reasonably available use of the property and its value for that use;
  • machinery, equipment and fixtures forming part of the real estate taken; and
  • any other factors as to which evidence may be offered. 

Once the condemning authority provides an offer of just compensation to the condemnee, the condemnee may accept that offer without jeopardizing its right to file a petition for a board of view to determine whether the just compensation paid was sufficient. 

A condemnee has five (5) years from the filing of the Declaration of Taking to decide whether to file a petition for a board of view to determine just compensation.  If your property was taken by a governmental agency, it may not be too late to determine whether just compensation was received.

Once a board of view makes its decision, a condemnee is free to appeal that decision to the Court of Common Pleas, in which event a new trial will be held before the Court without regard to the decision of the board of view. 

In the event the condemnee is successful either before the board of view or in Court, the Eminent Domain Code provides for delay damages to compensate the condemnee for the delay in payment. Delay damages are paid at an annual rate equal to the prime rate as listed in the first edition of the Wall Street Journal published in the year, plus 1%, not compounded, from: (1) the date of relinquishment of possession of the condemned property by the condemnee; or (2) if possession is not required to effectuate condemnation, the date of condemnation.

There is often great debate between condemnee and condemnor as to the date from which delay compensation commences. Pennsylvania case law provides that a condemnee has a prima facie entitlement to delay compensation from the date of taking. Therefore, the burden is on the condemnor to overcome this presumption that the condemnee is entitled to delay compensation from the date of taking. If the condemnee is to be denied delay compensation from the date of taking, the condemnor must prove continued possession by the condemnee. 

If your property was condemned within the last five years, it may not be too late to take a second look at whether you were justly compensated and whether there may be some future entitlement to delay damages if you were not justly compensated.