We have written on this subject before, but somehow some judges do not get it.  A condemnation proceeding is not like private litigation.  A condemnation claim is the enforcement of a constitutional mandate that just compensation be paid.

Even if the claimant fails in the burden of proof, it is not that he will be non-suited and receive no compensation.  Rather, in this worst-case scenario, the claimant will simply receive the amount proven by the condemnor.  In New York, the burden of proof is on the court to assure that the award of the constitutional requirement of just compensation is attained.  As United States Supreme Court Justice Felix Frankfurter wrote, “[s]ince land and buildings are assumed to have some transferable value, when a claimant for just compensation for their taking proves that he was their owner, that proof is ipso facto proof that he is entitled to some compensation.”  Kimball Laundry Co. v United States, 338 US 1, 20 [1949].  Thus, to hold a claimant responsible for the burden of proof for the value of their property is contrary to well-established law that the court has the burden of proof.

Any award of just compensation must be premised on valid appraisals of the property.  New York’s Appellate Division, Second Department, summarized the process as follows: “[If] the appraisals of both parties were defective, there should be a new trial to determine the proper theory of valuation.  A condemnation proceeding is not a private litigation.  There is a constitutional mandate upon the court to give just and fair compensation for any property taken.”

This means “just” to the claimant and “just” to the people who are required to pay for it.  The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly.  Where we find it is not…we must remit for retrial upon the proper theory…Accordingly, we remit this case for the taking of testimony and a new determination of an appropriate theory of valuation upon which the court may derive a value of the parcel… Yaphank Dev. Company v County of Suffolk, 609 NYS2d 346, 248 (NY App Div 1994).

A condemnor will often incorrectly claim that the claimant has the burden of proof to prove that the condemning authority’s valuation is incorrect.  The law does not require a former owner, whose property has been taken against its will, to disprove the valuation put on his property by the condemnor’s appraiser.


Posted in Burden of Proof, Offer & Compensation, Trial Preparation
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