Information Regarding Eminent Domain Takings Filed With The Board Of Tax & Land Appeals
This information will assist you in understanding the procedure followed when an eminent domain declaration of taking (“Declaration”) is filed with the Board of Tax & Land Appeals (“Board”).
The right of government to take private property for public use upon payment of just compensation (condemnation) effected by the filing of a Declaration with the Board. See RSA 498-A for the Eminent Domain Procedure Act and PART Tax 210 for the Administrative Rules governing this process with the Board.
Parties to the Condemnation:
“Condemnor”: The taking authority, including the state, county or municipal government or other public entity vested with the power of eminent domain for public purpose.
“Condemnee”: The owner of record of the property right(s) taken in eminent domain. This includes the following: tenants for life or years, remaindermen, reversioners, holders of undischarged mortgages of record whose mortgages are dated not earlier than 20 years prior to the date of the filing of the Declaration, municipalities with respect to unpaid taxes, fees and interest for property which the municipality has been granted a lien or other interest in the property under the provisions of RSA 80, and Guardians Ad Litem appointed by the Board.
After a Declaration is filed, the Board issues an “order of notice” to be served by either certified mail or sheriff on each Condemnee, along with a copy of the Declaration, plan of the property and a copy of the Board’s Administrative Rules. The order notifies the Condemnee(s) of the Declaration and explains their rights to file a “preliminary objection” within thirty (30) days of the return date given on the order.
The Condemnee has the right to challenge the necessity of the taking by filing a preliminary objection, which the Board, by statute, will transfer to the superior court in the county where the property is located for the court to hear and decide that particular issue. (See RSA 498-A:9-b). If the court agrees with the preliminary objection, it will dismiss the Declaration. If the court denies it, the Board will schedule the case for a hearing on the issue of just compensation.
The burden of proof is on the Condemnor to show the estimated just compensation is proper. The Condemnor is entitled to possession of the property once it has deposited the damages with the Board. The Condemnee is entitled to withdraw the damages on file with the Board at any time after the Declaration is filed. The withdrawal of the deposit of damages does not waive the right to seek greater compensation from the Board. (See RSA 498-A:11, III).
A just compensation hearing is scheduled approximately one (1) year after the Declaration is filed. The hearing will be held in the county where the property is located and a view of the property will be taken. The Board typically has questions of both parties and the parties are allowed to cross examine witnesses. The Board is not bound by the technical rules of evidence and has the discretion to admit testimony which has reasonable probative value on the issue of just compensation.
After the hearing, the Board will issue a decision in the matter. An appeal of the Board’s award must be made within twenty (20) days from the date of the Board’s decision to the superior court of the county the property is located in. (See RSA 498-A:27). The proceedings before the superior court are de novo (anew). If neither party appeals the decision of the Board, costs are awarded (upon motion) to the prevailing party. (See RSA 498-A:26-a.)
Obtain the most recent copy of IRS Form W-9 (Request for Taxpayer Identification Number and Certification)
Frequently Asked Questions:
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