Eminent Domain

ORS 35.346
Offer to purchase required before filing action for condemnation

  • appraisal
  • arbitration
  • when costs and disbursements allowed


(1)

At least 40 days before the filing of any action for condemnation of property or any interest in property, the condemner shall make a written offer to the owner or party having an interest to purchase the property or interest, and to pay just compensation therefor and for any compensable damages to remaining property.

(2)

The offer shall be accompanied by any written appraisal upon which the condemner relied in establishing the amount of compensation offered. If the condemner determines that the amount of just compensation due is less than $20,000, the condemner, in lieu of a written appraisal, may provide to the owner or other person having an interest in the property a written explanation of the bases and method by which the condemner arrived at the specific valuation of the property. The amount of just compensation offered shall not be reduced by amendment or otherwise before or during trial except on order of the court entered not less than 60 days prior to trial. An order for reduction of just compensation offered, pleaded by the condemner in the complaint or deposited with the court for the use and benefit of the owner pending outcome of the condemnation action, may be entered only upon motion of the condemner and a finding by clear and convincing evidence that the appraisal upon which the original offer is based was the result of a mistake of material fact that was not known and could not reasonably have been known at the time of the original appraisal or was based on a mistake of law.

(3)

Unless otherwise agreed to by the condemner and the owner, prior to appraising the property the condemner shall provide not less than 15 days’ written notice to the owner of the planned appraisal inspection. The property owner and designated representative, if any, shall be invited to accompany the condemner’s appraiser on any inspection of the property for appraisal purposes.

(4)

The owner has not less than 40 days from the date the owner receives the written offer required by subsection (1) of this section, accompanied by the appraisal or written explanation required by subsection (2) of this section, to accept or reject the offer. If the owner rejects the condemner’s offer and obtains a separate appraisal, the owner shall provide the condemner with a copy of the owner’s appraisal not less than 60 days prior to trial or arbitration.

(5)

(a) Failure to provide the opposing party with a copy of the appropriate appraisal as provided in subsections (2) and (4) of this section shall prohibit the use of the appraisal in arbitration or at trial.

(b)

In the event the owner and condemner are unable to reach agreement and proceed to trial or arbitration as provided in subsection (6) of this section, each party to the proceeding shall provide to every other party a copy of every appraisal obtained by the party as part of the condemnation action.

(6)

(a) If an action based on the condemnation is filed, the owner may elect to have compensation determined by binding arbitration if the total amount of compensation claimed by any party does not exceed $20,000. Notice of an election of binding arbitration must be given to the condemner at least 90 days prior to the date on which an arbitration hearing is scheduled under ORS 36.420 (Notice of arbitration hearing).

(b)

Notwithstanding the amount established under ORS 36.400 (Mandatory arbitration programs), if the owner elects to proceed with binding arbitration, the arbitration shall be conducted according to the mandatory arbitration program established under ORS 36.400 (Mandatory arbitration programs) to 36.425 (Filing of decision and award). Notwithstanding ORS 36.425 (Filing of decision and award), no party may request a trial de novo after the filing of the decision and award of the arbitrator. Within 20 days after the filing of the decision and award of the arbitrator under ORS 36.425 (Filing of decision and award), any party may file a motion with the court for the vacation, modification or correction of the award. The court may vacate an award only if there is a basis to vacate the award described in ORS 36.705 (Vacating award) (1)(a) to (d). The court may modify or correct an award only for the grounds given in ORS 36.710 (Modification or correction of award). Except as provided in this subsection, no party may appeal from the decision and award of an arbitrator if the owner elects binding arbitration in lieu of trial.

(c)

If the total amount of compensation claimed exceeds $20,000 but is less than $50,000, the owner may elect to have compensation determined by nonbinding arbitration under the applicable provisions of ORS 36.400 (Mandatory arbitration programs) to 36.425 (Filing of decision and award).

(7)

If a trial is held or arbitration conducted for the fixing of the amount of compensation to be awarded to the defendant owner or party having an interest in the property being condemned, the court or arbitrator shall award the defendant costs and disbursements including reasonable attorney fees and reasonable expenses as defined in ORS 35.335 (Effect of condemner’s abandonment of action) (2) in the following cases, and no other:

(a)

If the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement submitted by condemner before the filing of the action to those defendants appearing in the action pursuant to subsection (1) of this section; or

(b)

If the court finds that the first written offer made by condemner to defendant in settlement before the filing of the action did not constitute a good faith offer of an amount reasonably believed by condemner to be just compensation.

(8)

If any appraisal provided to a party under this section relies on a written report, opinion or estimate of a person who is not an appraiser, a copy of the written report, opinion or estimate must be provided with the appraisal. If any appraisal provided under this section relies on an unwritten report, opinion or estimate of a person who is not an appraiser, the party providing the appraisal must also provide the name and address of the person who provided the unwritten report, opinion or estimate.

(9)

Costs and disbursements other than reasonable attorney fees and expenses as defined in ORS 35.335 (Effect of condemner’s abandonment of action) (2) shall be awarded to condemner in all cases other than those in which defendant is entitled to costs and disbursements under subsection (7) of this section. [1973 c.617 §2 (enacted in lieu of 35.345); 1997 c.797 §1; 2003 c.476 §1; 2003 c.598 §33; 2005 c.274 §5; 2005 c.433 §1; 2007 c.1 §4; 2009 c.530 §1]

See also annotations under ORS 35.345 in permanent edition.

Notes of Decisions

Under Former Similar Statute (Ors 366.380)

For the purposes of this section, informal "offer" and official "tender" were identical. State Hwy. Comm. v. Freeman, 11 Or App 513, 504 P2d 133 (1972)

In General

In an action at law, the trial court's findings as to attorney fees, if based on the Newburn standards may be set aside only if they are not supported by any substantial, competent evidence. Urban Renewal v. Starr Foods, Inc., 16 Or App 475, 519 P2d 101 (1974)

Interest from the day of judgment runs against the state on a judgment for attorney fees under this section. State Hwy. Comm. v. Carmel Estates, Inc., 18 Or App 235, 525 P2d 61 (1974), Sup Ct review denied

It is not necessary for defendant to plead right to recover attorney fees under this section. State ex rel Dept. of Transp. v. Stafford, 34 Or App 983, 580 P2d 574 (1978)

Notwithstanding that city failed to make written offer prior to filing complaint, condemnees were not entitled to award of attorney fees where jury award did not exceed lump-sum offer made to condemnees. Urban Renewal Agency of Salem v. Caughell, 35 Or App 145, 581 P2d 98 (1978)

Where county's final compensation offer for land taken was $6,000 and jury verdict was $5,730, landowner was not entitled to recover attorney fees and reasonable expenses under this section. Douglas County v. Brown, 42 Or App 527, 600 P2d 945 (1979)

Where state's highest settlement offer was greater than value of property but less than value plus interest, condemnee was entitled to attorney fees and costs. State ex rel Dept. of Trans. v. Glenn, 288 Or 17, 602 P2d 253 (1979)

Same offer may serve as written offer to owner at least 20 days prior to filing of action and as highest written offer in settlement to defendant. Department of Transportation v. Kesterson, 182 Or App 105, 47 P3d 546 (2002), Sup Ct review denied

Offer need not be available at time of trial to qualify as highest written offer in settlement made to defendant at least 30 days prior to commencement of trial. Department of Transportation v. Kesterson, 182 Or App 105, 47 P3d 546 (2002), Sup Ct review denied

"Appraisal" means opinion of value that: 1) is completed and issued; 2) complies with applicable administrative rules regulating activities of appraisers; and 3) is made by person certified or licensed to issue opinion. Department of Transportation v. Stallcup, 341 Or 93, 138 P3d 9 (2006)

Substantial or complete identity between owners of one parcel and members of corporation owning second parcel does not create unity of ownership for purposes of condemner making initial written offer to parcel owner or party in interest. Dept. of Transportation v. Pilothouse 60, LLC, 220 Or App 203, 185 P3d 487 (2008), Sup Ct review denied

To satisfy this statute, terms of offer must match assumptions on which offered amount of damages was calculated. Oregon Department of Transportation v. Singh, 257 Or App 322, 306 P3d 745 (2013)

Compensable damages to remaining property constitute any depreciation in fair market value of remaining property caused by taking. Oregon Department of Transportation v. Singh, 257 Or App 322, 306 P3d 745 (2013)

Fair market value of property after taking must be calculated based on highest and best use of property regardless of whether that use is same as it was before taking. Oregon Department of Transportation v. Singh, 257 Or App 322, 306 P3d 745 (2013)

Offer means display of willingness to enter into contract on specified terms, made in way that would lead reasonable person to understand that acceptance of offer will result in binding contract. Oregon Department of Transportation v. Singh, 257 Or App 322, 306 P3d 745 (2013)

Chapter 35

Notes of Decisions

Replacement value of property should not be considered unless property is unique or unless property taken performs legally necessary function. State Bd. of Higher Educ. v. First Methodist Church, 6 Or App 492, 488 P2d 835 (1971)

Occupation of land by condemner during eminent domain proceedings does not constitute waiver by condemner of its right to abandon such proceedings. Port of Newport v. Haydon, 10 Or App 271, 498 P2d 825 (1972)

Organization of property owners adjoining automobile raceway did not show in challenging city's grant of noise ordinance variance to raceway that it utilized eminent domain procedures established by state law. Citizen's Ass'n. of Portland v. Intern. Raceways, 833 F2d 763 (1987)

Law Review Citations

8 WLJ 261-268 (1972); 85 OLR 1063 (2006)


Source

Last accessed
Jun. 26, 2021