State Planning and Property Acquisition
CHAPTER 95. Real Property Acquisition
(a) This chapter shall be applicable to the acquisition of real property by state and local land acquisition programs or projects in which federal, state or local funds are used.
(b) The term “agency” means any department, agency or instrumentality of the State or of a political subdivision of the State, any department, agency or instrumentality of 2 or more states, or 2 or more political subdivisions of the State, or states, and any person who has the authority to acquire property by eminent domain under state law.29 Del. C. 1953, § 9201; 58 Del. Laws, c. 413, § 3; 67 Del. Laws, c. 8, § 9;
(a) The policy of the provisions of this chapter pertaining to eminent domain is to ensure that eminent domain is used for a limited, defined public use. Public use does not include the generation of public revenues, increase in tax base, tax revenues, employment or economic health, through private land owners or economic development.
(b) Notwithstanding any other provision of law, neither this State nor any political subdivision thereof nor any other condemning agency, including an agency as defined in § 9501(b) of this title, shall use eminent domain other than for a public use, as defined in subsection (c) of this section.
(c) The term “public use” shall only mean:
(1) The possession, occupation, or utilization of land by the general public or by public agencies;
(2) The use of land for the creation or functioning of public utilities, electric cooperatives, or common carriers, or
(3) Where the exercise of eminent domain:
a. 1. Removes a “blighted area” as defined at § 4501(3) of Title 31, or a “slum area”, as defined at § 4501(23) of Title 31;
2. Removes a structure that is beyond repair or unfit for human habitation or use; or
3. Is used to acquire abandoned real property; and
b. Eliminates a direct threat to public health and safety caused by or related to the real property in its current condition.
(d) Whenever real property is condemned and will be used, including owned, occupied or developed by a private party, the State or agency thereof or a political subdivision must establish by clear and convincing evidence that the use of eminent domain complies with the definition of “public use” in subsection (c) of this section.
(e) No written notice or correspondence shall be sent to property owners from the State, an agency or a political subdivision communicating to the property owner that the real property is subject to eminent domain without the State, an agency, or a political subdivision first notifying the property owner in writing of the public use as defined in subsection (c) of this section and as required by § 9505(15) of this title.77 Del. Laws, c. 12, § 1;
The provisions of § 9501A of this title shall not apply to the acquisition of property or property rights by the Department of Transportation for any transportation facility, project, or program as defined in Titles 2, 9, 14, 17, and this title, if the primary purpose of each parcel being required is to maintain or improve the State’s transportation network, as sworn to by the Secretary of the Department or the Secretary’s authorized designee.77 Del. Laws, c. 12, § 5; 70 Del. Laws, c. 186, § 1;
The provisions of § 9501A of this title shall not apply to the acquisition of property or property rights by the Department of Natural Resources and Environmental Control, any tax ditch, and any tax lagoon, for any acquisition authorized in Title 7, if the primary purpose of such acquisition is to maintain, protect or improve the State’s natural resources, as sworn to by the Secretary of the Department or the Secretary’s authorized designee.77 Del. Laws, c. 12, § 6; 70 Del. Laws, c. 186, § 1;
The agency acquiring real property for such use shall, as soon as practicable after the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is the earlier, reimburse the owner, to the extent the agency deems fair and reasonable, for expenses necessarily incurred for:
(1) Recording fees, transfer taxes and similar expenses incidental to conveying such real property to the State;
(2) Penalty costs for prepayment for any preexisting recorded mortgage entered into in good faith encumbering such real property; and
(3) The prorata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the State or the effective date of possession of such real property by the State, whichever is the earlier.29 Del. C. 1953, § 9202; 58 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1;
Where a condemnation proceeding is instituted by the agency to acquire real property for such use and the final judgment is that the real property cannot be acquired by condemnation or the proceeding is abandoned, the owner of any right, title or interest in such real property shall be paid such sum as will, in the opinion of the court, reimburse such owner for reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings. The awards of such sums will be paid by the agency.29 Del. C. 1953, § 9203; 58 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 216, § 2;
Where an inverse condemnation proceeding is instituted by the owner of any right, title or interest in real property because of use of the owner’s property in any program or project, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the Department of Justice effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the Department of Justice, reimburse such plaintiff for reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceedings.29 Del. C. 1953, § 9204; 58 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1;
The agency shall comply with the following policies:
(1) Every reasonable effort shall be made to acquire expeditiously real property by negotiation.
(2) Real property shall be appraised before the initiation of negotiations, and the owner or the owner’s designated representative shall be given an opportunity to accompany the appraiser during an inspection of the property except that the agency may with the owner’s permission, eliminate the appraisal in cases involving acquisition by donation. The agency shall provide the owner with a copy of the agency’s approved appraisal prior to initiation of negotiations for acquisition of the property.
(3) Before the initiation of negotiations for real property, an amount shall be established which it is reasonably believed is just compensation therefor, and such amount shall be offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of real property. Any decrease or increase of the fair market value of real property prior to the date of valuation caused by any program or project for which such property is acquired or by the likelihood that the property would be acquired for such program or project, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
(4) No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the court, in accordance with Chapter 61 of Title 10, for the benefit of the owner in an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property.
(5) Any program or project shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling (assuming a replacement dwelling will be available) or to move the person’s business or farm operation without at least 90 days’ written notice from the date by which such move is required.
(6) If an owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the agency on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.
(7) In no event shall the time for negotiations or condemnation be advanced, the deposit of funds in court for the use of the owner be deferred nor any other coercive action be taken to compel an agreement on the price to be paid for the property.
(8) If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The agency shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of the owner’s real property.
(9) If the acquisition of only a portion of a property would leave the owner with an uneconomic remnant, the agency concerned shall offer to acquire that uneconomic remnant. For the purpose of this chapter, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner’s property and the agency concerned has determined the parcel has little or no value or utility to the owner.
(10) A person whose real property is being acquired in accordance with this chapter may, after the person has been fully informed of the right to receive just compensation for such property, donate such property, any part thereof, any interest therein or any compensation paid therefor, to an agency, as such person shall determine.
(11) The term “appraisal” means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.
(12) Purchase of title insurance in the acquisition of property by the Department of Transportation shall only be authorized upon written request of the Secretary of the Department with unanimous written approval of the co-chairs of the Joint Finance Committee, the Controller General and the Director of the Office of Management and Budget.
(13) a. When state funds are transferred into nonstate-controlled escrow accounts in anticipation of property acquisitions by the Department of Transportation, the Department shall pursue the most cost-effective and timely means of effectuating said transfer of funds. Methods of funds transfer shall include, but not be limited to, the electronic transfer of funds.
b. Any funds escrowed for such purposes shall be subject to routine audit by the State Auditor.
(14) For a real property acquisition necessitated by a highway project, an appraisal is unnecessary if the Department of Transportation determines that the valuation of the property to be acquired is uncomplicated and the market value is estimated at $50,000 or less, based on a review of available data. If an appraisal is determined to be unnecessary, the Department of Transportation shall prepare a waiver of valuation. The Department of Transportation may seek from the federal agency funding the project, approval on a case-by-case basis to increase the waiver amount on any valuation over $10,000 and up to a maximum of $25,000, or the amount currently approved by the federal agency, provided that the Department of Transportation offers the property owner the option of having an appraisal prepared. In all cases in which the estimated market value of a property to be acquired is over $10,000, the property owner must be given the option of having an appraisal prepared.
(15) Notwithstanding any other provision of law to the contrary, the acquisition of real property through the exercise of eminent domain by any agency shall be undertaken, and the property used, only for the purposes of a recognized public use, as defined in § 9501A of this title, at least 6 months in advance of the institution of condemnation proceedings:
a. In a certified planning document;
b. At a public hearing held specifically to address the acquisition; or
c. In a published report of the acquiring agency.
This paragraph shall not apply to the obtaining of right-of-ways or easements by an agency for public utilities, such as sewer, water, or electric.29 Del. C. 1953, § 9205; 58 Del. Laws, c. 413, § 3; 67 Del. Laws, c. 8, §§ 10-12; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 226, §§ 1, 2; 74 Del. Laws, c. 297, § 2; 75 Del. Laws, c. 88, § 21(13); 75 Del. Laws, c. 216, § 1; 77 Del. Laws, c. 12, § 2;
(a) Where any interest in real property is acquired, an equal interest in all buildings, structures or other improvements located upon the real property so acquired and which is required to be removed from such real property or which is determined to be adversely affected by the use to which such real property will be put shall be acquired.
(b) For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as above set forth, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired, notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building, structure or improvement at the expiration of the tenant’s term, and the fair market value which such building, structure or improvement contributes to the fair market value of the property to be acquired, or the fair market value of such building, structure or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.
(c) Payment for such buildings, structures or improvements as set forth above shall not result in duplication of any payments otherwise authorized by the laws of this State. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer and release all right, title and interest in and to such improvements. Nothing with regard to the above-mentioned acquisition of buildings, structures or other improvements shall be construed to deprive the tenant of any right to reject payment and to obtain payment for such property interests in accordance with other laws of this State.29 Del. C. 1953, § 9206; 58 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1;