Quick Take Process ( Louisiana Law )

April 21, 2010

To: Staring Lane Community Association
Re: Louisiana Quick Take Process
Dear Association Members:

As promised, the following are a list of applicable laws with reference to a quick take action in Louisiana. They can be found in Title 48 of the code of Louisiana Revised Statutes. To sum it up, the following steps will have to happen in a “quick take” process:

1. The city will file a petition expropriate or “take” the property following a failure to agree on compensation;
2. Defendant (you) has the right to file a Motion to Dismiss within 20 days if the following occurs:
a. You can prove the property was not taken for public purpose, or;
b. The city failed to fulfill the requirements of statutes 442-444 (listed below);
c. The Motion will be heard by a judge.
3. Should the motion fail, the defendant has the right to file an answer within one year to have a trial on the compensation issue.
4. Should you win on the motion, or should you prove that you were under compensated, 48:456 provides that you can recover attorney fees and court costs.
I am confident that we can use this process to force the city’s hand in providing appropriate compensation. The key will be in filing the Motion To Dismiss and an Answer which I can assist with.


Here are the laws:

§441. Authority to expropriate and acquisition of property prior to judgment
A. Where the Department of Transportation and Development cannot amicably acquire property needed for highway purposes, the department may acquire the same by expropriation.
B. In any suit for the expropriation of property, including both corporeal property and servitudes, the department may acquire the property prior to judgment in the trial court in the manner provided in this Part.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954. Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1977, No. 291, §1; Acts 2006, No. 11, §5.


§442. Contents of petition for expropriation; place of filing
The rights of expropriation granted by this Part shall be exercised in the following manner:
(1) A petition shall be filed by the plaintiff in the district court of the parish in which the property to be expropriated is situated. However, where the property to be expropriated extends into two or more parishes and the owner of the property resides in one of them, the petition shall be filed in the district court of the parish where the owner resides, but if the owner does not reside in any one of the parishes into which the property extends, the petition may be filed in any one of the parishes. In all such cases, the court wherein the petition is filed shall have jurisdiction to adjudicate as to all the property involved.
(2) The petition shall contain a statement of the purpose for which the property is to be expropriated, describing the property necessary therefor with a plan of the same, a description of the improvement thereon, if any, and the name of the owner or owners as shown in the public records.
(3) The petition shall have annexed thereto the following:
(a) A certified copy of a certificate of authorization to expropriate executed by the secretary of the department, declaring that the taking is necessary or useful for the purposes of this Part.
(b) A certificate signed by the chief engineer or, in his absence, his principal assistant, declaring that he has fixed the right-of-way in a manner sufficient in his judgment to provide presently and in the future for the public interest, safety, and convenience.
(c) A certificate signed by the chief engineer, by the road design engineer, and, if appropriate, by the bridge design engineer, declaring that the location and design of the proposed improvements are in accordance with the best modern practices adopted in the interest of the safety and convenience of the traveling public. In the absence of any of them, his chief assistant may sign for him.
(d) An itemized statement of the amount of money estimated to be the full extent of the owner's loss for the taking or the damage, or both, as the case may be, the methodology used in the estimate, and all of the information required by R.S. 48:443 relative to estimators. It shall be signed by those who made the estimate, showing the capacity in which they acted, and the date on which it was made. The real estate administrator or his designated representative shall signify his approval on the face thereof. It shall not be grounds to dismiss the taking if it is shown that the estimate is or may be less than the full extent of the owner's loss.
(e) Repealed by Acts 2003, No. 1065, §2, eff. July 1, 2003.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1977, No. 291, §1; Acts 1979, No. 413, §9, eff. July 11, 1979; Acts 1984, No. 304, §1; Acts 1988, No. 882, §1; Acts 1989, No. 124, §1, eff. June 22, 1989; Acts 2001, No. 473, §1, eff. June 21, 2001; Acts 2003, No. 1065, §§1, 2, eff. July 1, 2003.

§442.1. Contents of petition for expropriation; property needed for design-build projects; place of filing
Notwithstanding the provisions of R.S. 48:442, the rights of expropriation granted by this Part shall be exercised for design-build projects authorized according to the provisions of R.S. 48:250.2 in the following manner:
(1) A petition shall be filed by the plaintiff in the district court of the parish in which the property to be expropriated is situated. However, where the property to be expropriated extends into two or more parishes and the owner of the property resides in one of them, the petition shall be filed in the district court of the parish where the owner resides. If the owner does not reside in any one of the parishes into which the property extends, the petition may be filed in any one of the parishes. In all such cases, the court wherein the petition is filed shall have jurisdiction to adjudicate as to all the property involved.
(2) The petition shall contain a statement of the purpose for which the property is to be expropriated, describing the property necessary therefor with a plan of the same, a description of the improvement thereon, if any, and the name of the owner or owners as shown in the public records.
(3) The petition shall have annexed thereto the following:
(a) A certified copy of a certificate of authorization to expropriate executed by the secretary of the department, declaring that the taking is necessary or useful for the purposes of this Part.
(b) A certificate signed by the chief engineer or, in his absence, his chief assistant, declaring that he has fixed the right-of-way in a manner sufficient in his judgment to provide presently and in the future for the public interest, safety, and convenience of the traveling public and has made a determination of the amount and location of the property required for the purposes set forth in the petition and that in his opinion the property is neither excessive or inadequate for such purposes.
(c) An itemized statement of the amount of money estimated to be the full extent of the owner's loss for the taking or the damage, or both, as the case may be, the methodology used in the estimate, and all of the information required by R.S. 48:443 relative to estimators. It shall be signed by those who made the estimate, showing the capacity in which they acted and the date on which it was made. The real estate administrator or his designated representative shall signify his approval on the face thereof. It shall not be grounds to dismiss the taking if it is shown that the estimate is or may be less than the full extent of the owner's loss or that the estimate was made without consideration of final plans.
Acts 2005, 1st Ex. Sess., No. 43, §1, eff. Dec. 6, 2005.

443. Appointment of estimators; restrictions in selection
A. The real estate administrator shall select one or more persons to make the estimate of just compensation except when the estimate is expected to exceed the amount of thirty thousand dollars in which case he shall select two or more persons. However, when the department cannot amicably acquire clear title to property solely for reasons unrelated to the amount of just compensation to be paid such as unopened successions, absentee defendants, or partial interests, one person shall be selected to make the estimate regardless of the amount. The estimate shall be performed by either a real estate appraiser or real estate specialist in the regular employ of the department or a licensed Louisiana appraiser certified pursuant to the Louisiana Real Estate Appraisers Law. The person performing the estimate shall be familiar with land values in the vicinity of the property to be taken and shall conduct the appraisal in accordance with real estate appraisal guidelines.
B. Each estimator in determining the extent of the owner's loss shall consider the replacement value of the property taken.
C. Prior to filing its petition, the department shall provide to the owner the following information with respect to each estimate of the owner's loss.

(1) The name, address, and qualifications of the person or persons preparing the estimate.
(2) The amount of the estimate.
(3) A description of the methodology used in the estimate.
(4) Upon request by the owner, a copy of the estimate prepared by each estimator.
Added by Acts 1954, No. 107, §1 eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1; Acts 1989, No. 124, §1, eff. June 22, 1989; Acts 1989, No. 736, §1; Acts 2001, No. 56, §1; Acts 2003, No. 341, §2; Acts 2006, No. 727, §1, eff. June 29, 2006.


§444. Prayer of petition; ex parte order of taking
The petition shall conclude with a prayer that the property be declared taken for highway purposes. Upon presentation of the petition, the court shall issue an order directing that the amount of the estimate be deposited in the registry of the court and declaring that the property described in the petition has been taken for highway purposes at the time of the deposit.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954. Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

§445. Vesting of title
Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights, as contained in the petition. Upon such deposit, title to the property and the property rights specified in the petition shall vest in the department and the right to just compensation therefor shall vest in the persons entitled thereto.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1.

§446. Notice to defendant
Upon receipt of the deposit, the clerk of court shall issue a notice to each defendant in the suit, notifying him that the property described in the petition has been expropriated for highway purposes.
This notice, together with a certified copy of the order, the petition, and the clerk's receipt for the deposit, shall be delivered by the clerk to the proper sheriff for service on each defendant in the manner provided for the service of citations.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954. Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

§447. Contesting validity of taking; waiver of defenses
A. Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public purpose or on the ground that the petition and attached exhibits do not satisfy the provisions contained in R.S. 48:442 through 444 may file a motion to dismiss the suit within twenty days after the date on which the notice was served on him. He shall certify thereon that a copy thereof has been served personally or by mail on either the plaintiff or its attorney of record in the suit. This motion shall be tried contradictorily with the plaintiff to the judge alone and shall be decided prior to fixing the case for trial.
B. Failure to file the motion within the time provided constitutes a waiver of all defenses to the suit except claims for compensation.
Added by Acts 1954, No. 107, §1 eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1.

§448. Right of possession; limitation by court
If there are no buildings located wholly or partially upon the property described in the petition, the department is entitled to enter upon and take possession of the property upon the deposit of the estimated compensation.
If any building is located wholly or partially upon the property described in the petition, the court may postpone the right of entry for any period not to exceed thirty days from the date on which the last of any parties defendant was served with the notice. However, the department in its discretion, may request the court to order possession surrendered after a longer delay. The court may fix a reasonable rental to be paid to the department by a defendant in possession of the property for each day he remains in possession after the withdrawal of any part of the amount deposited.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954. Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

§449. Withdrawal of amount deposited
Upon the application of any party in interest, and upon due notice to all parties, the court may order that the money deposited, or any part thereof, be paid forthwith to the person entitled thereto for or on account of the just and adequate compensation to be awarded in the proceedings.
The court may make such orders as shall be just and equitable to direct the payments of taxes, encumbrances and other charges out of the money deposited.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954. Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

§450. Defendant's answer; requirements; delay for filing
A. Where an entire lot, block or tract of land is expropriated, any defendant may apply for a trial to determine the measure of compensation to which he is entitled, provided:
(1) He files an answer within ninety days from the date he is served with the notice;
(2) His answer sets forth the amount he claims;
(3) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.
B. Where a portion of a lot, block, or tract of land is expropriated, any defendant may apply for a trial to determine the measure of compensation to which he is entitled, provided:
(1) He files an answer within one year from the date he is served, in the same manner provided for service of the petition, with a copy of the department's notice of acceptance, which has been filed with the clerk of court of the parish in which the action is pending, declaring that it has finally accepted the construction of the highway project for which the property was expropriated; provided however, that he may file his answer at any time prior thereto;
(2) His answer sets forth the amount he claims, including the value of each parcel expropriated and the amount he claims as damages to the remainder of his property;
(3) His damage claim is reasonably itemized;
(4) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1.

§451. Fixing for trial; notice
After answer is filed, if no motion to dismiss the suit pursuant to R.S. 48:447 is pending before the court, either party may, upon ex parte motion, request that the matter be docketed for trial. The court shall fix the time for the trial of the suit not more than sixty days after the filing of the motion, and the trial shall be conducted with preference and with the greatest possible dispatch. The clerk of court shall thereupon issue to all parties a notice of the time fixed for the trial. This notice shall be served at least thirty days before the time fixed for the trial and in the manner provided by law for the service of citations.
Acts 1987, No. 619, §1.

§451.1. Right to trial by jury
In an expropriation proceeding pursuant to this Part any party has the right to demand a trial by jury to determine just compensation.
Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

451.2. Time limit for demanding jury trial; waiver of demand for jury trial; limitations
A. A defendant may demand jury trial in his answer or by motion filed within the delays provided for the filing of his answer.
B. The department may demand jury trial by motion filed no later than fifteen days after service upon the department of an answer filed by a defendant.
C. For purposes of this Section, answers filed by attorneys appointed to represent absent or unknown defendants shall not cause these delays to begin to run, unless that answer indicates that the appointed attorney has been retained or employed by the owner to assert and prosecute a claim in his behalf.
D. Once any party has timely demanded a jury trial, that demand is effective against and binding upon all parties to the suit, and cannot thereafter be waived without the consent of all parties. With the consent of all parties, a demand for jury trial may be waived at any time prior to the swearing of the jury.
Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1.

§451.6. Procedure in general
In cases to be tried by jury, six jurors summoned in accordance with law shall be chosen by lot to try the case. The method of calling and drawing by lot shall be at the discretion of the court.
Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.


§451.19. Number required for verdict
In order to reach any verdict, five of the jurors trying the case must concur therein.
Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975.

§453. Measure of compensation; burden of proof; extent of loss
A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant's remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss. The court shall include in its consideration the difference between the rate of interest of any existing mortgage on an owner-occupied residence and the prevailing rate of interest required to secure a mortgage on another owner-occupied residence of equal value.
D. The defendant shall present his evidence of value first.
E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed twenty-five percent of the difference between the award and the amount deposited in the registry of the court.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1976, No. 391, §1, eff. Oct. 1, 1976; Acts 1983, No. 33, §2; Acts 1988, No. 882, §1.

455. Judgment to provide interest
If the amount finally awarded for compensation exceeds the amount deposited, the judgment shall include legal interest on the excess from the date the defendant files an answer as provided in R.S. 48:450 until paid, but such interest shall not accrue on any award made for expert fees or attorney fees prior to judgment.
Added by Acts 1954, No. 107, §1, eff. June 24, 1954; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1; Acts 1992, No. 483, §1; Acts 2006, No. 322, §1, eff. July 1, 2006.

§456. Judgment as to difference awarded; payment of judgment
A. If the amount finally awarded exceeds the amount so deposited, the court shall enter judgment against the department and in favor of the persons entitled thereto for the amount of the deficiency. The judgment shall not be an in globo award, but shall list separately the amounts awarded, but not deposited, for:
(1) An increase in the fair market value of the part taken;
(2) An increase in severance damages;
(3) Attorney fees;
(4) Expert witness fees; and
(5) Any other type of loss or damage.
B. Those portions of the final judgment which award an increase in the value of the part taken, an increase in severance damages, compensation for any other type of loss or damage, together with interest payable on those sums not deposited, attorney fees, and expert witness fees shall be paid within ninety days after becoming final. Thereafter, upon application by the owner or owners, the trial court may issue a writ of mandamus to enforce payment.
Added by Acts 1954, No. 107, §1, eff. June 24, 1981; Amended by Acts 1974, Ex.Sess., No. 30, §1, eff. Jan. 1, 1975; Acts 1988, No. 882, §1.


Sincerely,

Gwynn L. Shamlin, II