This chapter may be cited as the "Alabama Eminent Domain Code."
At any time after payment of the award and before entry of judgment, the defendant by motion may withdraw the amount of the condemnor's approved offer. The motion shall specify the applicant's property for which the deposit was made and request leave to withdraw such amount from the funds on deposit.
Upon motion of a party at any time after a deposit has been made, the court shall direct that the money not withdrawn be invested in certificates of deposit of federal and state banks and savings and loan associations, or in treasury bills, notes, or obligations of the federal government or any agency thereof, subject to reasonable terms and conditions. Interest earned or other increments derived from the investment shall be allocated, credited, and disbursed between the parties pro rata, in relation to the final award.
Discovery and pretrial conferences in condemnation actions in the circuit court are governed by the Alabama Rules of Civil Procedure.
Nothing in this section shall be construed to enable any party to obtain a written valuation report of the other party.
This article does not make admissible any evidence not otherwise admissible nor permit a witness to base an opinion on any matter not a legally proper basis for the opinion.
(a) To the extent practicable, actions under this chapter shall be heard and tried in advance of other civil actions.
(b) The circuit court may require any severable nonjury issue to be tried separately in advance of the trial on the issue of the amount of compensation.
(a) In the circuit court the amount of compensation and any additional issue for which the right to trial by jury is secured by the Constitution shall be determined by a jury only if a party entitled to participate in the trial of the issue expressly demands trial by jury. The circuit court shall determine all other issues without a jury.
(b) The number of jurors, method used for impanelling and selecting jurors, number and method for exercising challenges, form of oath to be administered, number of jurors required to return a verdict, and all other procedures relating to trial by jury, to the extent practicable, shall conform to the requirements applicable in civil actions under the Alabama Rules of Civil Procedure.
The plaintiff shall make the first opening statement, proceed first in the presentation of evidence on the issues of the amount of compensation, and make the final closing argument.
No party has the burden of proof on the issue of the amount of compensation.
The circuit court or jury shall first determine the total compensation as between the plaintiff and all defendants claiming an interest in the property. The circuit court shall determine the apportionment of the amount awarded in a subsequent proceeding. After the amount of compensation has been determined, the plaintiff may withdraw from further participation in the trial.
(a) An owner of property acquired by eminent domain is entitled to compensation determined under the standards prescribed in this article.
(b) If there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking.
The amount of compensation to which the owners and other parties interested therein are entitled must not be reduced or diminished because of any incidental benefits which may accrue to them or to their remaining lands in consequence of the uses to which the lands to be taken or in which the easement is to be acquired will be appropriated; provided, that in the condemnation of lands for ways and rights-of-way for public highways, water or sewer lines, the commissioners or jury may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, take into consideration the value of the enhancement to the remaining lands of such owner that such highway, water or sewer lines may cause; and provided further, that in proceedings instituted by water conservancy districts and water management districts, benefits accruing to the landowner from an improvement may be considered and allowed as a setoff against the damages to be awarded, but benefits derived from improvements other than the improvement for which the land is condemned cannot be considered; and provided further, that in the condemnation of lands, rights, easements, or interests in land, lying seaward of the construction control line then in effect under the regulations of the Alabama Department of Environmental Management, the ordinances of a coastal municipality, or both, for use by a coastal municipality in the establishment and maintenance of a beach project permitted pursuant to Section 9-15-56, the commissioners or jury, in fixing the amount of compensation to be awarded the owner for the lands, rights, easements, or interests lying seaward of the construction control line taken for such use, shall take into consideration the value of the enhancement to the remaining lands of the owner that the beach project may cause as the result of the placement of sand directly on and directly seaward of the lands, or rights, easements, or interests in land so taken. To the extent, and only to the extent, that sand is placed directly on and directly seaward of the lands, or rights, easements, or interests in land so taken, the commissioners or jury may presume:
(1) That the value of the remaining lands of the owner will exceed the value of all lands, rights, easements, and interests of the owner prior to the taking as a result of the enhancement in value resulting from the beach project.
(2) That the owner has sustained no damage and is entitled to no compensation as a result of the taking.
The presumptions shall be rebutted only by substantial evidence adduced by the owner.
The fair market value as used in this chapter shall be defined as the price the property would bring when offered for sale by a willing seller who is not forced to sell and which is sought by a willing buyer who is not required to buy, after due consideration of all the elements affecting value.
(a) The fair market value of the property does not include an increase or decrease in value before the date of valuation that is caused by
(1) The proposed improvement or project for which the property is taken;
(2) The reasonable likelihood that the property would be acquired for that improvement or project; or
(3) The condemnation action in which the property is taken.
(b) If the second taking was within contemplation of the condemnor at the time of the first taking the valuation of the second taking shall exclude any enhancement value arising out of or created by the first taking.
(c) Notwithstanding subsections (a) and (b), a decrease in value before the date of valuation which is caused by physical deterioration of the property within the reasonable control of the property owner, and by his unjustified neglect, may be considered in determining fair market value.
Anything in this article to the contrary notwithstanding, the highest and best use of the property sought to be acquired shall be determined by a jury, if a trial by jury has been demanded.
(a) Actions under this chapter are governed by the rules of evidence applicable in other civil actions and as supplemented by this article.
(b) This article does not create or diminish any right to compensation or damages, and does not affect the meaning of "just compensation" under the law of this state.
(a) Upon motion of a party or its own motion, the circuit court may direct the jury to be placed in charge of an officer of the court and taken personally to view the property sought to be taken. Upon like motion, if the case is tried before the circuit court without a jury, the judge presiding at the trial may view the property. The circuit court may prescribe additional terms and conditions consistent with this section.
(b) During a view of the property by the jury, the judge presiding at the trial shall be present and supervise the proceedings. The parties, their attorneys, engineers, and other representatives may be present during a view by the jury or judge.
(c) During a view, only the judge presiding at the trial or person designated by the circuit court may make a statement to the jury relating to the subject matter of the action, and any such statement must be transcribed as a part of the record.
(d) The physical characteristics of the property and of surrounding property, and any other matters observed during a view, may be considered by the trier of fact solely for the purpose of understanding and weighing the valuation evidence received at the trial, and do not constitute independent evidence on the issue of the amount of compensation.
(a) Upon proper foundation, opinion evidence as to the value of property may be given in evidence only by one or more of the following persons:
(1) A witness qualified by knowledge, skill, experience, training, or education to express an opinion as to the value of the property;
(2) An owner of the property; or
(3) A shareholder, officer, or regular employee designated to testify on behalf of an owner of the property, if the owner is not a natural person.
(b) This section does not preclude the admissibility of other evidence explaining or enabling the trier of fact to understand and weigh any opinion testimony given under subsection (a).
For the purpose of supporting an opinion as to the value of property, evidence may be received relating but not limited to the following factors:
(1) Extent of loss of property and improvement;
(2) Present use of the property, and the highest and best use for which it is reasonably suitable and available in the reasonably foreseeable future;
(3) Extent of loss of a legal nonconforming use;
(4) Extent of damage to crops; and
(5) Existing zoning or other restrictions upon use, and the reasonable probability of a change in those restrictions.
For the purpose of supporting an opinion as to the value of a remainder after a partial taking, evidence may be received relating but not limited to the following factors:
(1) Extent of increase or decrease in the productivity and convenience of use of the remainder reasonably attributable to the taking;
(2) Extent of improvement in or impairment of access to the public highways from the remainder upon completion of the project;
(3) Extent of benefit or detriment caused by the project due to a change in grade within a right-of-way abutting the remainder;
(4) Extent of enhancement or damage as a consequence of the project;
(5) Extent of benefit or damage resulting from severance of land or improvements;
(6) Extent of benefit or damage resulting from the distance or proximity of the remainder, or improvements on the remainder, to the project in view of its character and probable use; and
(7) Cost of fencing not provided by the plaintiff and reasonably necessary to separate the land taken from the remainder.
The owner may consider any nonconjectural matters in forming his opinion as to the fair market value of his property.
As a basis for an opinion as to value, a valuation witness qualified under subsection (a) of Section 18-1A-192 may consider, inter alia:
(1) The price and other circumstances of any good faith sale of all or part of the property sought to be taken, whether the sale was entered into before or after the valuation date.
(2) The price and other terms and circumstances of any good faith sale of comparable property. A sale is comparable within the meaning of this section only if it was made within a reasonable time before or after the valuation date and the property is sufficiently similar in the relevant market, with respect to situation, location, size, usability, improvements, and other characteristics, to warrant a reasonable belief that it is comparable to the property being valued. Any proposed comparable sale that fails to meet the foregoing standards shall not be admissible.
(3) The terms and circumstances of any lease made in good faith that included all or part of the property being valued or of comparable property whether the lease was made before or after the valuation date.
(4) The actual or reasonable net rental income attributable to the property when used for its highest and best use, capitalized at a fair and reasonable rate.
(5) The cost of reproducing or replacing existing improvements on the property sought to be taken which enhance its value for its highest and best use, less any depreciation resulting from physical deterioration or from functional or economic obsolescence.
(6) The nature, condition, and use of properties in the general vicinity of the property being valued.
Notwithstanding the provisions of Sections 18-1A-192 to 18-1A-196(5), the following factors are not admissible as a basis for an opinion as to the value of property:
(1) The price or other terms and circumstances of an acquisition of comparable property, where that property was or could have been acquired in that transaction under the power of eminent domain;
(2) The price at which property was optioned, offered, mortgaged or listed for purchase, sale or lease;
(3) The assessed value of property for purposes of taxation;
(4) Except as provided in subdivision (5) of Section 18-1A-193, the influence upon the value of the property being valued of an exercise of the police power or of other noncompensable damage.
(a) This chapter provides standards for the acquisition of property by condemnors, the conduct of condemnation actions, and the determination of just compensation. It does not confer the power of eminent domain, and does not prescribe or restrict the purposes for which or the persons by whom that power may be exercised.
(b) This chapter supplements the law of this state relating to the acquisition of property and to the exercise of the power of eminent domain. In the event of conflict between this chapter and any other law with respect to any subject governed by this chapter, this chapter prevails.
(a) In order to encourage and expedite the acquisition of property by agreement, to avoid litigation and relieve congestion in the courts, to assure consistent treatment of owners, and to promote public confidence in practices and procedures relating to the acquisition of property for public use, a condemnor, when acquiring property, shall comply with applicable provisions of Sections 18-1A-21 through 18-1A-30.
(b) Sections 18-1A-21 through 18-1A-30 apply to the purchase and acquisition of materials, supplies, equipment, or other personal property only if the condemnor determines to exercise its power of eminent domain with respect to that property or by reason of the exercise of such power substantially damages the same.
(c) Sections 18-1A-21 through 18-1A-30 shall not apply to the purchase of lands under Chapter 3 of this title.
Before commencing a condemnation action, the condemnor shall cause the property to be appraised to determine the amount that would constitute just compensation for its taking. The owner or his representative shall be given a reasonable opportunity to accompany the appraiser during the inspection of the property.
The judgment shall:
(1) Describe the property condemned and declare the right of the plaintiff to take it by eminent domain;
(2) Recite the amount of compensation and damages, if any, and declare that title to the property will be transferred to the plaintiff after the plaintiff has paid to the defendant, or to the court for the benefit of the defendant, the amount awarded.
(a) Except as provided in subsection (b), the judgment shall include interest at a rate equal to the most recent weekly average one-year constant maturity yield, as published by the Board of Governors of the Federal Reserve System, upon the unpaid portion of the compensation awarded. The interest shall commence to accrue on the date of entry of the judgment.
(b) Except as provided by Section 18-1A-111, the judgment may not include any interest upon the amount represented by funds deposited into probate court by the plaintiff for the period after the date of deposit.
(a) The judgment shall credit against the total amount awarded to the defendant any payments made before the date of entry of the judgment by plaintiff to the defendant as compensation for the property taken, plus any funds which the defendant withdrew from money deposited by the plaintiff.
(b) If the amount to be credited against the award under subsection (a) exceeds the total amount awarded, the judgment shall require the defendant to pay the excess to the plaintiff or other person entitled thereto.
(a) If the probate court finds that the plaintiff and defendant have entered into a written agreement under which the plaintiff has completed, or has undertaken to perform, described work, or if a pretrial order required the performance of work by the plaintiff, the court may include in the judgment a determination that the plaintiff has satisfied, or may satisfy, the judgment in whole or in part by performing the work as described.
(b) The provisions included in the judgment under subsection (a) shall describe or incorporate the terms and conditions of the agreement or pretrial order, and to the extent the agreement or order fails to provide therefor shall include requirements relating to:
(1) The location and nature of the work and the time for its commencement and completion; and
(2) The amount of compensation awarded which is or will be satisfied by performance of the work by the plaintiff, rather than by payment in money together with any proper adjustments in the amount of interest allowable on the amount awarded.
(c) For good cause, the probate court may require the plaintiff to deposit funds with the court, or to execute and file with the clerk a bond with sureties approved by the court, in an amount not less than the estimated cost of the work, to guarantee its faithful and timely performance; and the court may impose other reasonable terms and conditions including a reservation of continuing jurisdiction to assure that the work will be properly performed in accordance with the judgment.
(a) Within the time prescribed by Section 18-1A-290, the plaintiff shall pay the full amount required by the judgment after crediting all amounts withdrawn by the defendant from funds on deposit. The court for good cause may extend the time within which payment must be made for an additional period not exceeding 30 additional days.
(b) Payment may be made by the plaintiff by paying money personally to the defendant, or to the legal representative of the defendant, taking a receipt therefor and filing a copy with the court; or by depositing the amount of the award with the probate court for the defendant. By making a deposit under this section the plaintiff does not waive its right to review.
(c) Within 30 days after a deposit of the award under subsection (b), the court shall give written notice by first class mail to each defendant whose address is known and for whom a disclaimer is not on file and who has not received personal payment in full.
(d) Before final distribution of the condemnation award, the tax collector shall file a disclaimer or an itemized statement of any taxes claimed to be due which shall be deducted from the award and paid to the tax collector before distribution to the owners, unless the taxes claimed are disputed, in which event, all taxes disputed must be promptly determined by the circuit court.
(a) If the plaintiff fails to make full payment of the judgment, or of the full amount awarded for any separate item or parcel of property described therein, within the time allowed under Section 18-1A-214, the defendant may treat the failure to make payment as an abandonment of the condemnation action with respect to the property for which payment has not been made, and may move to vacate the judgment and for a dismissal under Section 18-1A-230.
(b) In determining questions arising under subsection (a), the circuit court may make appropriate orders to adjust the rights of the parties, including orders with respect to the possession and use of the property and the performance of any work thereon, and may award damages, interest, and costs to the defendant as justice requires.
After the entry of the judgment of condemnation, the defendant by motion may withdraw the amount of the condemnor's approved offer. The motion shall specify the applicant's property for which the deposit was made and request leave to withdraw such amount from the funds on deposit.
(a) Before commencing a condemnation action, the condemnor shall establish an amount based on an appraisal which it believes to be just compensation therefor and promptly shall submit to the owner an offer to acquire the property for the full amount so established. The amount shall not be less than the condemnor's established amount of just compensation for the property.
(b) In a total taking, the condemnor shall disregard any decrease or increase in the fair market value of the property caused by the project for which the property is to be acquired or by the reasonable likelihood that the property will be acquired for that project, other than normal depreciation.
(c) The amount of compensation to which the owners and other parties interested therein are entitled must not be reduced or diminished because of any incidental benefits which may accrue to them or to their remaining lands in consequence of the uses to which the lands to be taken or in which the easement is to be acquired will be appropriated; provided, that in the condemnation of lands for ways and rights-of-way for public highways, water or sewer lines, the commissioners may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, take into consideration the value of the enhancement to the remaining lands of such owner that such highway, water or sewer lines may cause; and provided further, that in proceedings instituted by water conservancy districts and water management districts, benefits accruing to the landowner from an improvement may be considered and allowed as a setoff against the damages to be awarded, but benefits derived from improvements other than the improvement for which the land is condemned cannot be considered.
(d) The condemnor shall provide the owner of the property with a written statement and summary, showing the basis for the amount it established as just compensation for the property. If appropriate, the compensation for the property to be acquired and for the damages to remaining property shall be separately stated.
An owner shall not be required to surrender possession of property before the condemnor:
(1) Pays the agreed purchase price; or
(2) Pays, or deposits in accordance with this chapter, the amount awarded by the condemnation order.
On motion of the defendant, the court shall dismiss the action in whole or in part, as justice requires, if:
(1) Upon sustaining a preliminary objection to the plaintiff's complaint, the court determines that a dismissal is required;
(2) The plaintiff has unjustifiably failed to exercise reasonable diligence in prosecuting the action;
(3) The plaintiff has failed to pay the full amount required by the judgment within time allowed.
The court may dismiss the action in whole or in part upon motion of the plaintiff at any time prior to payment of the judgment. In its order of dismissal, the court may impose any conditions that are just and equitable, including a requirement of restitution of property or money.
(a) The court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.
(b) If the scope of the property to be taken is reduced as the result of (1) a partial dismissal, (2) a dismissal of one or more plaintiffs, or (3) a final judgment determining that the plaintiff cannot take part of the property originally sought to be taken, the court shall award the defendant the portion of his litigation expenses attributable to the property within the scope of the reduction.
(c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions.
If the action is dismissed for any reason, and the defendant has vacated the property under an order of possession or in reasonable contemplation of its taking by the plaintiff, the circuit court, upon demand of the defendant, shall order the plaintiff to (1) deliver possession of the property to the defendant or other person entitled thereto, and (2) pay damages to the defendant as justice requires, including damages for any injury to or impairment of the value of the property not within the reasonable control of the defendant.
Except in an emergency, a condemnor may not require a person lawfully occupying property to move from a dwelling, nor to move his business or farm operation, unless he has received written notice from the condemnor at least 90 days before the date by which the move is required.
If a condemnor, after acquiring property, rents all or part of the property to the former owner or tenant for a short term or for a period subject to termination by the condemnor on short notice, the amount of rent charged may not exceed the fair rental value of this property.
(a) A condemnor and a condemnee or two or more condemnees may enter into and comply with the terms of an agreement in conformity with this article for the arbitration of any issue relating to the amount or the apportionment of compensation for the taking of property.
(b) An agreement to arbitrate does not constitute and shall not be construed as a waiver of or excuse for noncompliance with any requirement of Article 2 or 3 relating to the acquisition of property except to the extent expressly provided in the agreement.
Except as specifically provided in this article, an agreement to arbitrate under Section 18-1A-250 has the same effect, and an arbitration thereunder may be conducted, and the award may be judicially confirmed, in conformity with the same procedures, as in other arbitrations under the law of this state. To the extent that this article and any agreement in conformity with it are inconsistent with any other law, this article prevails.
An arbitration agreement under this article may be made and carried into effect either before or after a condemnation action has been commenced. The agreement does not waive or restrict the right to commence and prosecute a condemnation action, including the taking of possession before judgment, except to the extent expressly provided in the agreement.
If a condemnation action has been commenced and is pending between the parties to an arbitration agreement under this article:
(1) A petition, motion, or other proceeding thereafter initiated in connection with the arbitration shall be filed in and determined by the court in the condemnation action;
(2) The court in the condemnation action may stay the determination of an issue of compensation in the action until arbitration pursuant to the agreement has been concluded; and
(3) The total or apportioned amounts of compensation as determined by the arbitration award and confirmed by the court shall be included in the judgment of condemnation as the amount of compensation for the property.
In the absence of a pending condemnation action relating to the property, a petition, motion, or other proceeding initiated in connection with arbitration pursuant to an agreement under this article shall be filed in and determined by a court that would have both jurisdiction and proper venue of the condemnation action if it had been commenced immediately prior thereto. Unless the agreement for arbitration otherwise provides, the total or apportioned amounts of compensation as determined by the arbitration award and confirmed by the court shall be entered as a judgment with the same effect and subject to the same terms and conditions as a judgment of condemnation of the property.
Unless the arbitration agreement provides otherwise, the conduct of the arbitration shall be subject to the following rules:
(1) The locale for the arbitration is the county in which the subject property, or the major portion of that property, is located.
(2) The law of this state relating to the criteria for ascertaining just compensation and damages, and the elements thereof, shall be applied.
(3) The arbitration tribunal shall be the judge of the relevancy and materiality of the evidence offered, and conformity to the legal rules of evidence shall not be required.
(4) The amount of compensation determined by the arbitration award must be within the range of the evidence presented by the parties.
(5) The condemnor shall pay the compensation of and all expenses and fees incurred by the arbitrators.
(a) Subject to the requirements of subsection (b), an arbitration under this article may specify the terms and conditions, if any, under which the condemnor may abandon acquisition of the property.
(b) Unless the arbitration agreement expressly waives the property owner's right to reimbursement, in the event of abandonment of acquisition after an arbitration agreement has been entered into, he is entitled to recover from the condemnor:
(1) The same litigation expenses that would be recoverable upon dismissal of an action for the acquisition of the property; and
(2) All other expenses, not included in recoverable litigation expenses, reasonably and necessarily incurred by him in preparation for and in participating in the arbitration and in judicial proceedings in connection with the arbitration, including reasonable attorney, appraisal, and engineering fees.
(c) If abandonment of acquisition occurs after the rendition of an award in the arbitration proceedings, the amount of the expenses payable under this section shall be determined as an additional issue in the arbitration, unless the arbitration agreement expressly provides otherwise. If the abandonment occurs before the rendition of the award, the amount shall be determined by the court in a condemnation action, if one is commenced, or in any independent action brought against the condemnor.
(a) An agreement under this article, or a memorandum summarizing its terms and describing the subject property, after being executed and acknowledge by the parties, may be recorded, or rerecorded, in the same manner and with the same effect as a conveyance of real property.
(b) The record of the agreement or summary of agreement ceases to be notice to any person for any purpose after two years following the date of recordation or rerecordation under subsection (a).
In order to compel an agreement on the price to be paid for the property, a condemnor may not arbitrarily advance the time of condemnation, arbitrarily defer negotiations or condemnation, nor take any other action coercive in nature.
(a) If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the condemnor shall offer to acquire the remnant concurrently and may acquire it by purchase or by condemnation if the owner consents.
(b) "Uneconomic remnant" as used in this section means a remainder following a partial taking of property, of such size, shape, or condition as to be of little value or that gives rise to a substantial risk that the condemnor will be required to pay in compensation for the part taken an amount substantially equivalent to the amount that would be required to be paid if it and the remainder were taken as a whole.
The State of Alabama, or any county, municipality, the University of Alabama, Auburn University, the University of Montevallo or any corporation organized under the laws of this state, or any person or association of persons, proposing to take lands, or to acquire an interest or easement therein, for any uses for which private property may be taken, may, if there be no other mode of proceeding prescribed by law, apply to the probate court of the county in which such lands, or a material portion thereof, may be situate, for an order of condemnation thereof to such uses. The state or any county may institute and maintain the proceedings herein authorized, in its own name, without giving bond or security or causing affidavit to be made, though the same may be required if the action were between private citizens. The written direction of the Governor to the attorney of record is a sufficient authority for bringing the suit.
The Governor may cause proceedings to be instituted in the name of the state of Alabama for the acquirement by condemnation of any lands, rights-of-way or material needed for the use of the penitentiary, or the maintenance or operation of the prison system of the state, the purchase of which may be authorized by law. Such proceedings must be had in the probate court of the county in which such lands or other property, or a material part thereof, may be situated, and prosecuted in the name of the State of Alabama in accordance with the provisions of this chapter providing for the condemnation of lands for the public uses so far as the same may be applicable; except, that the application need not be certified, nor shall security for costs be required of the state.
A telegraph or telephone company, incorporated under the laws of another state, proposing to extend connecting lines into this state, may acquire an easement for the uses and purposes of such connecting lines and may pursue the mode of proceeding prescribed in this chapter.
Any corporation, person or association of persons owning a railroad or street railroad in this state and proposing to cross or intersect the line of another railroad or street railroad may acquire an easement for such purpose and to that end may pursue the mode of proceeding prescribed in this chapter.
Railroad companies and street railway companies may jointly or severally construct viaducts and subways in any municipality in this state by and with the consent of the municipality in which such viaduct or subway is to be constructed, and, to that end, such railroad companies and street railway companies may condemn all necessary property, lands and interest and easements therein, including consequential damages to any property thereby injured or to be injured, as well as any property taken or destroyed or to be taken or destroyed.
Such condemnation proceedings may be had as provided by the general laws of this state governing the taking of lands or acquiring of interests therein for the uses for which private property may be taken, injured or destroyed.
If the owner of the lands or other party interested therein is an infant or is of unsound mind, the probate court, on the day appointed for the hearing, must appoint a guardian ad litem to represent him, and the guardian so appointed must file a written acceptance of the appointment, must appear and protect the rights and interests of such infant or person of unsound mind, and, if he deems it necessary, may employ counsel to assist him. The compensation of such guardian and of his counsel must be ascertained by the probate court and taxed as costs of the proceedings.
The probate court shall conduct a hearing within 30 days after the filing of the complaint at which, on the day appointed, or any other day to which the hearing may be continued, the probate court must hear the allegations of the complaint, any objections which may be filed to the granting thereof and any legal evidence touching the same and shall, within 10 days after such hearing, make an order granting or refusing the complaint.
The hearing provided for in this chapter must in all respects be conducted and evidence taken as in civil cases at law, except as otherwise provided in this chapter.
Any person interested in the proceeding may be present in person or by attorney at any of the proceedings or trials provided for in this chapter.
If the complaint be granted, in whole or in part, within 10 days after the complaint is granted, the judge of probate must appoint three citizens of the county in which the lands sought to be condemned are situated, who shall possess the qualifications of jurors, who shall be disinterested and who shall file a certificate along with their award that neither of them had ever been consulted, advised with or approached by any person in reference to the value of the lands or the proceedings to condemn the same prior to the assessment of damages and that they knew nothing of the same prior to their appointment. The judge of probate may fill any vacancy occasioned by death, failure to act or any disqualification of any such commissioners from interest, prior knowledge of the subject matter or being consulted with, advised with or approached in reference to the condemnation of such lands prior to appointment or assessment of the damages.
A condemnor that acquires any interest in real property shall also acquire at least an equal interest in all buildings, structures, or other improvements located upon the real property acquired, which the condemnor requires to be destroyed or removed or which will be adversely affected by the use to which the real property will be put.
When the probate court shall have appointed the commissioners as provided in this chapter, it shall immediately issue notice of the appointment to the commissioners.
The commissioners thus appointed, or a majority of them, shall assess separately the damages and compensation to which the several owners and other parties interested in each of the several tracts of land are entitled, and they shall be sworn as jurors are sworn. The commissioners may view the lands to be subjected and must hold a hearing after notice to all parties to receive all legal evidence offered by any party touching the amount of damages the owners of the lands and other parties interested therein will sustain and the amount of compensation they are entitled to receive.
The commissioners must, within 20 days from their appointment, make a report in writing to the probate court stating the amount of damages and compensation ascertained and assessed by them for the owners of each tract of and, or persons injured and other parties interested therein, and thereupon, within seven days, the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed. A notice of entry of said order and the amount of the award shall immediately be mailed by first class mail to each party whose address is known, together with a notice of the right to appeal therefrom to the circuit court within 30 days from the date of said order.
Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal, a copy of which shall be served on the opposite party or his attorney, and on such appeal, the trial shall be de novo, and it shall be necessary to send up the proceedings only as to the parties appearing or against whom an appeal is taken.
No appeal shall suspend the judgment or deprive the applicant of the right of entry, provided the amount of the damages assessed for the parties who appeal or against whom an appeal is taken shall have been paid into probate court in money and a bond shall have been given in double the amount of such damage, with good and sufficient surety, to pay such damages as the property owners may sustain. Said amount of damages may be paid into probate court and said bond in double the amount of such damage, with good and sufficient surety, may be given at the time of taking the appeal or at any time thereafter that the applicant may desire the right of entry pending the appeal.
In case more than one party appeals or appeal is taken against more than one, there shall be separate bonds given for each tract of land involved, as provided in Section 18-1A-284 to each one so appealing or appealed against.
If the probate court refuses to grant the application, the applicant shall have a right of appeal to the circuit court upon giving security for costs, to be approved by the judge of probate, and upon such appeal the trial shall be de novo. Upon any appeal taken to the circuit court under this section, if such circuit court determines that the application should be granted, it shall immediately proceed either to have the damages and compensation assessed as provided in Section 18-1A-151 or grant the condemnor the right of entry upon deposit of the amount of its approved offer into circuit court together with a bond in double the amount as provided in Section 18-1A-284. In such latter event the valuation issue shall be determined as provided in Section 18-1A-151 as may be set by the circuit court.
Upon the payment of the damages so assessed to the owner or other party interested therein and the payment of costs of suit into circuit court, or upon the payment of the damages and costs of suit into circuit court, the circuit court shall make an order of condemnation in accordance with the application upon the trial in the circuit court to which the appeal is taken.
After entry of final judgment in the circuit court, any party may, within 42 days thereafter, upon giving bond or security for costs as in other cases, file a notice of appeal to the court of civil appeals where the amount involved, exclusive of interest and costs, does not exceed $10,000.00. Where the amount involved, exclusive of interest and costs, exceeds $10,000.00, such appeal shall be to the supreme court.
The order of condemnation, upon the payment of the sum ascertained and assessed by the verdict of the circuit court, or the bond thereof in the circuit court for the defendant, shall vest in the applicant the property or property right proposed to be acquired for the uses and purposes stated in the application and for no other uses or purposes. But if an appeal shall be taken by any party, then the person, corporation or association seeking to acquire such property or property right, upon the deposit in the circuit court for the party whose land or interest therein is sought to be condemned of the amount of damages and compensation so assessed, together with the costs of the proceeding, shall be entitled to enter upon the lands so condemned and to survey, construct and operate on the same for the uses and purposes stated in the application, but such property or property right shall not vest absolutely in such person, corporation or association until the final determination of the cause and the payment or deposit in circuit court of such damages and compensation as shall then be adjudged.
(a) If a building, structure, or other improvement to be acquired by a condemnor under Section 18-1A-28 is owned by a tenant:
(1) It shall be deemed for the purpose of determining compensation to be a part of the real property to be acquired notwithstanding the right or obligation of the tenant, as against the owner of any other interest in the real property, to remove it at the expiration of his term; and
(2) The compensation awarded shall include an amount sufficient to pay the tenant the larger of (i) the enhancement to the fair market value of the real property contributed by the improvement, or (ii) the fair market value of the improvement assuming its removal from the real property.
(b) Payment under this section shall not duplicate any payment authorized by law, and may be made only if the owner of the real property disclaims any interest in the improvement. In consideration for the payment, the tenant shall assign, transfer, and release to the condemnor all of his interest in the improvement.
(c) This section does not deprive the tenant of any right to reject payment hereunder and to seek to obtain payment for his interest in or damage to the improvement under any other law.
The condemnor may pay the damages and compensation assessed at any time within 90 days after the assessment thereof, or, in case an appeal is taken, within 60 days after the appeal is determined, but if he fails to pay the same within such time, such assessment shall cease to be binding on the owner of the lands or other party interested therein, and the rights of the plaintiff thereunder shall cease to be binding and the complaint shall be dismissed, and, upon such dismissal, the plaintiff shall be liable to the owner or other party as provided in Article 13 for all damages the latter may have sustained by the institution of such proceedings, including a reasonable attorney's fee for defending the same.
Any one of the owners or parties alleged in the complaint to own or hold any claim, interest or title in the lands sought to be condemned may, after the granting of the application, file with the probate court his claim for his part or division of the award made by commissioners; and upon the filing of such claim and upon the payment by the plaintiff into probate court of such award, the probate court shall set down for hearing the claim so filed by such party and determine the same. Upon such determination, the probate court shall distribute the funds to each of the parties so entitled thereto in the sum and manner in which the facts disclosed upon the hearing show each of said parties to be so entitled, less all court costs arising from the filing of each such claim.
The probate court may, in the event no such claims are filed by any of such parties and where the probate court is doubtful as to a proper division, require the parties in interest to propound their claims and to hear evidence upon the same in order that the probate court may determine to what part or proportion of said award each of said parties may be rightly entitled. No division or partition for distribution shall be made by the probate court under this section when any adverse claim or title is asserted by any one of the interested parties, which involves the determination of the title to land, and the procedure for partition or distribution under this section shall follow as near as may be the manner provided for the partition of property in chapter 6 of Title 35; except, that no parties in interest shall be added over the objection of any party to those made defendants in the application to condemn, and the hearing shall be confined to such parties so named or added without objection; and when any claim is denied by any party in interest, which involves the determination of the title to land, the probate court shall transmit to the circuit court the said claims and denials filed in the probate court and also the amount of the commissioners' award, less the proper court costs arising from the filing of such claims and denials; and the circuit court shall proceed to determine the matter as provided by law.
The costs of the complaint and proceedings thereunder up to and through the entry of final judgment, including the compensation of commissioners, must be adjudged and assessed against the plaintiff and its surety for costs for which execution may issue. The commissioner's fees in every case shall be set and determined by the probate judge and entered by separate order by the probate judge.
The court of probate must be deemed always open for the filing and trial of all applications made under this chapter.
(a) Whenever any institution of higher learning created by legislative act or by the state constitution and whose governing boards' powers are derived by state statute or from the constitution needs any land or interest therein near the campus of the institution for its educational purposes and the owner thereof is a minor or an insane person, or refuses to sell the land to the state for use of the institution, or will not agree with the board of trustees or the president on a price therefor, the trustees are hereby authorized to institute in the probate court of the county in which the land is located proceedings in the name of the state, to condemn such land, which proceedings shall be conducted as nearly as possible in accordance with the provisions of Chapters 1 and 1A of Title 18. It shall be the duty of the trustees to pay out of the funds of the institution all costs of every condemnation proceeding instituted by them under the power hereby conferred.
(b) This section shall be supplemental to all other laws of this state relating to the acquisition of property and to the exercise of the power of eminent domain. In the event of conflict between this section and any other law relating to acquisition of property and the power of eminent domain, the provisions of this section shall prevail.
As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) ACTION. Condemnation action.
(2) APPRAISAL. An opinion as to the value of or compensation payable for property, prepared by the owner or under the direction of an individual qualified by knowledge, skill, experience, training, or education to express an opinion as to the value of property.
(3) BUSINESS. A lawful activity, whether or not for profit, other than a farm operation, conducted primarily for the purchase, sale, lease, rental, manufacture, processing, or marketing of products, commodities, or other property, or for providing services.
(4) CONDEMN. To take property under the power of eminent domain.
(5) CONDEMNATION ACTION. Includes all acts incident to the process of condemning property after commencement of suit until the entry of final judgment.
(6) CONDEMNEE. A person who has or claims an interest in property that is the subject of a prospective or pending condemnation action.
(7) CONDEMNOR. A person empowered to condemn.
(8) CROPS. Any form of vegetation intended to be removed and used or sold for commercial purposes, including grass, flowers, fruits, vegetables, trees, vines, and nursery stock.
(9) FARM OPERATION. Any activity conducted primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing those products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
(10) IMPROVEMENT. Includes any building or structure and any facility, machinery, or equipment that cannot be removed from the real property on which it is situated without substantial damage to the real property or improvement.
(11) LIEN. A security interest in property arising from contract, mortgage, deed or trust, statute, common law, equity or creditor action.
(12) LITIGATION EXPENSES. The sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or participation in actual probate or circuit court proceedings.
(13) LOCAL PUBLIC ENTITY. A public entity other than the state.
(14) PERSON. Includes a natural individual, partnership, corporation, association, other legal or fiduciary entity, and a public entity.
(15) PERSONAL PROPERTY. Any property other than real property which is affixed or directly related to the real property proposed to be acquired.
(16) PROPERTY. An interest in real or personal property under the law of this state.
(17) REAL PROPERTY. Land and any improvements upon or connected with land; and includes an easement, servitude, or other interest therein.
(18) WORK. Includes construction, alteration, repair, remodeling, excavation, demolition, rehabilitation, relocation and landscaping.
(19) VALUATION DATE. Shall be the date on which the application for order of condemnation is filed in the probate court or the date of taking of or damage to property by the condemnor whichever date first occurs.
(a) As soon as practicable after payment of the purchase price, or payment of, or deposit in probate court, of funds to satisfy the award in a condemnation action, whichever is earlier, the condemnor shall pay, or reimburse the owner for, any reasonable and necessarily incurred expenses for:
(1) Recording fees, transfer taxes and similar expenses incidental to conveying the property to the condemnor;
(2) Penalty costs for prepayment of any debt secured by a preexisting lien, entered into or created in good faith, encumbering the property; and
(3) The prorated portion of property taxes allocable to a period after the date of vesting of title in, or the effective date of possession of the property by the condemnor, whichever is earlier.
(b) In the event of an appeal to the circuit court, the condemnor shall pay the owner interest upon any part of the award deposited in probate court and not made available to the owner within 40 days of the order of condemnation in the probate court at a rate equal to the rate allowed to be charged on money judgments as set forth in Section 8-8-10 as amended at the date of the final order in the circuit court, with the interest to be computed by the circuit court.
If not inconsistent with the requirements of an applicable statute or regulation, a failure to satisfy the requirements or limitations imposed under Sections 18-1A-20 through 18-1A-30, inclusive:
(1) Is waived by the failure of the property owner, in the exercise of reasonable diligence, to object to or seek relief based upon noncompliance; and
(2) May be waived by written agreement between the property owner and the condemnor.
Insofar as the provisions of this chapter are inconsistent with the provisions of any other law, general or special, the provisions of this chapter shall be controlling.
(a) Articles 1 through 5 of this chapter apply only to condemnation actions commenced on or after January 1, 1986.
(b) Article 1 and articles 6 through 16 of this chapter apply to the fullest extent practicable to pending condemnation actions commenced before January 1, 1986, with respect to issues on which a judgment has not been entered, and with respect to issues that are retried on or after January 1, 1986, pursuant to an order of a trial or appellate court.
(c) In any condemnation action in which an appeal or a motion to modify or vacate the verdict or judgment, or to grant a new trial, was pending on January 1, 1986, the law applicable before January 1, 1986, governs the determination of the appeal or motion.
(a) If property is to be acquired by a condemnor through the exercise of its power of eminent domain, the condemnor shall commence a condemnation action for that purpose. A condemnor shall not intentionally make it necessary for an owner of property to commence an action, including an action in inverse condemnation, to prove the fact of the taking of his property.
(b) The judgment and any settlement in an inverse condemnation action awarding or allowing compensation to the plaintiff for the taking or damaging of property by a condemnor shall include the plaintiff's litigation expenses.
(a) A failure to satisfy the requirements or limitations of Sections 18-1A-20 through 18-1A-32 does not affect the validity of the condemnor's interest in any property which it acquires by purchase or condemnation.
(b) This article shall be construed to be consistent with the requirements of federal law governing financial assistance for any project or purpose.
At any time before or after commencement of an action, the parties may agree to and carry out according to its terms a compromise or settlement as to any matter, including all or any part of the compensation or other relief.
Notwithstanding any provision of this chapter, a condemnor may comply with any federal statute, regulation, or policy prescribing a condition precedent to the availability or payment of federal financial assistance for any program or project for which the condemnor is authorized to exercise the power of eminent domain.
(a) A condemnor and its agents and employees may enter upon real property for a reasonable time and make surveys, examinations, photographs, tests, soundings, borings, and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to take for public use, if the entry is:
(1) Preceded by reasonable efforts to notify the owner, and any other person known to be in actual physical occupancy of the property, of the time, purpose, and scope of the planned entry and activities;
(2) Undertaken during reasonable daylight hours and for reasonable times;
(3) Accomplished peaceably and without inflicting substantial injury; and
(4) Not in violation of any other statute.
(b) The entry and activities authorized by this section do not constitute a trespass or constitute grounds for an inverse condemnation action, but the condemnor is liable under Sections 18-1A-52 and 18-1A-54 for resulting damages.
(a) If reasonable efforts to accomplish a lawful entry or to perform authorized activities upon real property under Section 18-1A-50 have been obstructed or denied or would be futile, the condemnor may apply to the circuit court in the county where the property or any part is located for an order permitting entry.
(b) Unless after notice good cause to the contrary is shown, the circuit court shall make its order permitting and describing the purpose of the entry and setting forth the nature and scope of activities the circuit court determines are reasonably necessary and authorized to be made upon the property. In addition to requiring a deposit under Section 18-1A-52, the order may include terms and conditions with respect to the time, place, and manner of entry and authorized activities upon the property which will facilitate the purpose of the entry and minimize damage, hardship, and burden.
(a) An order permitting entry under Section 18-1A-51 shall include a preliminary assessment by the circuit court of the probable amount that will fairly compensate the owner and any other person in lawful possession or physical occupancy of the property for damages for physical injury to the property, and for substantial interference with its possession or use, found likely to be caused by the entry and activities authorized by the order, and shall require the condemnor other than the state to enter into bond in double the amount of such preliminary assessment, with good and sufficient sureties, to pay such damages as the property owner or other person in lawful possession or physical occupancy of the property may sustain. The bond must be given before entry is made.
(b) Unless sooner disbursed by agreement or court order, the amount of the bond sufficient to cover the damages sustained shall be paid to those determined by the circuit court to be entitled thereto upon termination of the activities as permitted in subsection (a) of Section 18-1A-50. The circuit court for good cause may extend the period of retention.
(c) Upon the filing of an application for condemnation within the period of retention specified in subsection (b) naming as defendants the persons for whose benefit the bond was made or their successors in title and seeking to condemn for the public use for which entry was authorized hereunder, then the damages for injury to the property or for substantial interference with its possession and use shall be merged with and included within the compensation and damages ascertained in such condemnation proceeding, and the bond shall be refunded to the condemnor. In the event no such condemnation proceeding is instituted prior to the expiration of the period of retention, then the amount of damages for physical injury to the property and for substantial interference with its possession or use shall be determined as in other civil cases by the circuit court or, on demand of either party, by a jury and the award shall include interest at a rate equal to the rate allowed to be charged on money judgments as set forth in Section 8-8-10 as amended at the date of the final order in the circuit court, with the interest to be computed by the circuit court.
If the deposit is paid out prior to filing the condemnation action any such payment covering areas condemned shall be credited by the court to the final payment by the condemnor.
(a) After notice and hearing, the circuit court may modify an order made under Section 18-1A-51.
(b) If a bond is required or the amount required is increased by an order of modification, the circuit court shall specify the time within which the required bond must be posted, and may direct that any further entry or specified activities or studies under the order as modified be stayed until any required bond has been given.
(a) A condemnor is liable for physical injury to, and for substantial interference with possession or use of, property caused by his entry and activities upon the property. This liability may be enforced in a subsequent condemnation proceeding filed within the period specified as a retention period in Section 18-1A-52 or, if no such proceeding is filed within such period of time, by civil action with the right of trial by jury on demand of either party.
(b) If funds are on deposit under Section 18-1A-52 or 18-1A-53, the owner or other person entitled to damages under subsection (a) may apply to the circuit court for payment of his damages from such funds. If the amount on deposit is insufficient to pay the full amount, the circuit court shall enter judgment against the condemnor for the unpaid portion.
An action to condemn property may not be maintained over timely objection by the owner unless the condemnor has offered to acquire the property on the basis of its approved offer by purchase before commencing the action.
The procedure for condemnation of property under the power of eminent domain is governed by the Alabama Rules of Civil Procedure except as otherwise provided in this chapter. The procedure in the probate courts shall be as provided in this chapter.
A condemnation action is commenced by filing a complaint for condemnation with the probate court in the county in which the property or any part thereof sought to be taken is located.
(a) In addition to other allegations required or permitted by law, the complaint shall:
(1) Designate as a plaintiff each person on whose behalf the property is sought to be taken;
(2) Name as defendants all persons who to the plaintiff's knowledge are owners of or who have or claim any interest in the property sought to be taken; specify the nature of each defendant's interest. Defendants whose names are not known may be included under the designation "unknown claimants" provided reasonable diligence has been used to ascertain the same, and where the interest of the defendant is unknown the complaint may so state;
(3) Contain a legal description of the property and of the interest therein sought to be taken;
(4) Allege the basis of the plaintiff's right to take the property by eminent domain and maintain the action, including (i) a reference to the plaintiff's legal authority to take the property; and (ii) a statement of the purpose for which the property is sought to be taken; and
(5) List all items which the condemnor proposes to acquire and which it deems to be equipment or fixtures attached to or a part of the realty.
(b) If the property sought to be condemned or any portion thereof or interest therein has already been subjected to or devoted to a public use, such land or portion thereof or interest therein shall not be taken for another and different character of public use, unless an actual necessity for the specific land or portion thereof or interest therein shall be alleged and proven and unless it be alleged and proven that such other and different character of public use will not materially interfere with the public use to which such property is already subjected or devoted.
(c) Any corporation, person or association of persons owning a railroad or street railroad in this state and proposing to cross or intersect the line of another railroad or street railroad may acquire an easement for such purpose and to that end may pursue the mode of proceeding prescribed in this chapter.
(d) For purposes of information and notice, the complaint shall be accompanied by a map or diagram portraying the property sought to be taken and the remainder, if any.
(a) Where there are several tracts of land lying within one county of which portions are proposed to be taken, or in which an interest or easement is proposed to be acquired, the plaintiff may join them all in separate paragraphs in the same complaint.
(b) If there are several distinct tracts of land owned, claimed or held by different persons embraced in the complaint, the owners of each tract or other party interested therein may have a separate hearing as to the right to condemn their lands, and the probate court may, if it finds that the application should be granted as to some and not as to other of the owners or other parties, make and enter its decree accordingly.
(a) On the filing of the complaint, the probate court must enter an order appointing a day for the hearing thereof and must issue to the defendants a copy of the complaint and notice of the day set for the hearing unless such notice is waived.
(b) Service upon a defendant of the notice with a copy of the complaint may be made in accordance with Rule 4 of the Alabama Rules of Civil Procedure.
(a) After commencement of a condemnation action, the plaintiff shall cause a notice of the pendency of the proceedings to be recorded in the office of the probate court in each county in which any real property described in the complaint is located.
(b) The notice shall contain:
(1) The title of the action and the probate court, docket number if available, and date of filing of the complaint;
(2) A legal description of the real property sought to be taken as described in the complaint; and
(3) The name of each plaintiff and each defendant designated in the complaint.
(c) The notice shall be filed for record and indexed in the same manner as a notice of lis pendens in other cases.
(d) If after the filing of a notice the complaint in the action is amended to enlarge the quantity of, or nature of the interest in, the real property to be taken, or to add or substitute parties, the plaintiff shall cause a supplemental notice to be recorded in conformity with this section.
(e) Upon entry of a judgment of dismissal, any party may cause a notice of the dismissal to be recorded in the same office.
(f) A recorded notice of the pendency of a condemnation action under this section constitutes notice to purchasers and encumbrancers of the described property to the same extent as like notices of pending litigation in other cases relating to real property.
The defendant may respond by answer but is not required to do so unless defendant challenges the right to condemn or questions or disputes the area to be acquired or remain. If a defendant claims no interest in the just compensation to be awarded he may file a disclaimer.
(a) In addition to other matters required or permitted by law, a defendant may state in an answer:
(1) The nature and extent of the interest claimed by him in the property sought to be taken; and
(2) The nature of and basis for any preliminary objections.
(b) The preliminary objections may include any available ground for objecting to the maintenance of the action, including the grounds that:
(1) The plaintiff is not lawfully entitled to take the defendant's property for the purpose described in the complaint;
(2) A mandatory condition precedent to the commencement or maintenance of the action has not been satisfied; and
(3) The probate court lacks jurisdiction of the defendant or of the subject matter, or is not the proper venue, or the complaint or any other procedural aspect of the action is defective, insufficient, or improper.
(a) A disclaimer need not be in any particular form, shall be signed by the defendant or his attorney, and shall contain a statement that the defendant claims no interest in the property that is the subject of the action or in the compensation that may be awarded.
(b) A disclaimer may be filed at any time and supersedes any answer previously filed by him.
(c) Subject to subsection (d), a defendant who has filed a disclaimer has no right to notice of, or to participate in, any further proceedings, or to share in any award of compensation or damages, unless an amendment subsequent to the application is filed by the condemnor which involves an interest of the party who has filed the disclaimer, in which event, the party shall have notice of the amendment and the same rights as if no disclaimer had been filed.
(d) The probate court may implement the disclaimer by appropriate orders.
Preliminary objections shall be heard and determined by the probate court on the court's own motion, or on notice and motion by a party, before final determination of the amount of just compensation. The probate court may consolidate for hearing all preliminary objections asserted in separate actions pending in that court to take properties for the same use.
(a) Except as provided in subsection (b), the plaintiff has the burden of proof on all issues of fact raised in connection with a preliminary objection.
(b) If in support of a preliminary objection a defendant alleges fraud, corruption, bad faith, or gross abuse of discretion on the part of the plaintiff or any of its officers, agents, or employees, the defendant has the burden of proving by clear and convincing evidence the facts relating to that particular allegation.
(a) If the probate court determines that a preliminary objection is meritorious, the court shall make an appropriate order including:
(1) Dismissal of the action, in whole or in part, if the plaintiff is not authorized to take the property, or some part thereof, or the acts or omissions constituting the basis for the objection will necessarily inflict irreparable injury upon the defendant;
(2) Conditional dismissal, in whole or in part, unless, within a specified period, the plaintiff takes corrective or remedial action prescribed in the order, including, if appropriate, the adoption of a new or amended condemnation authorization; or
(3) Any other disposition required by the circumstances.
(b) In addition to other requirements of an order sustaining a preliminary objection or determining that the failure or omission constituting the basis of the objection was reasonably excusable, the probate court in the interest of justice may require the plaintiff to pay to the defendant all or part of his litigation expenses incurred because of the plaintiff's failure or omission constituting the basis of the objection. An award of litigation expenses shall be included in the order if the probate court finds that the plaintiff acted or failed to act without justification.