By Alan A. Sozio, Partner at Burke, Williams & Sorensen, LLP
A partial taking often necessitates that alterations be made to the remaining property so that it may best adapt to the changed circumstances caused by the taking. In an earlier post from November 19, 2020, I questioned whether a temporary construction easement (TCE) was truly necessary when the work can be done by the property owner. An often-overlooked provision of the Eminent Domain Law provides another possible solution.
Code of Civil Procedure section 1263.610 authorizes a public entity and affected property owner to make an agreement that the public entity will:
- Relocate for the owner any structure, or
- Carry out for the owner any work on property not taken, including work on any structure.
The Legislature intended the word “work” to have the broadest possible meaning, and covers such things as screening off roads, sound-proofing buildings, constructing rights of way, fences, driveways, sidewalks, retaining walls, and drainage or utility connections. Such an agreement may be entered into if it likely reduces the amount of compensation otherwise payable to the owner by an amount equal to or greater than the cost of such work. And, of course, the agreement must be voluntarily entered into by both parties. If successfully negotiated, such an agreement can obviate the need for a TCE over a portion of the property not otherwise affected by the taking, and can significantly reduce a claim for severance damages.