44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CONDEMNATION PROCEEDINGS; PROVIDING SAFEGUARDS FOR PERSONS WHOSE PROPERTY IS SUBJECT TO CONDEMNATION PROCEEDINGS; AMENDING SECTIONS OF THE EMINENT DOMAIN CODE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 42A-1-4 NMSA 1978 (being Laws 1980, Chapter 20, Section 4) is amended to read:

"42A-1-4. NEGOTIATION--OTHER APPRAISALS--CONDEMNOR'S DUTIES.--

A. A condemnor shall make reasonable and diligent efforts to acquire property by negotiation.

B. Unless prohibited by federal law, if the condemnor or condemnee has had prepared appraisals for the property, he shall make such appraisals available to the other party during the negotiation period.

C. Prior to the negotiation period, a condemnor shall provide the condemnee with written guidelines, in Spanish if appropriate, that explain:

(1) the condemnor's legal obligations;

(2) the condemnee's legal rights; and

(3) the condemnor's policies concerning the equitable performance of negotiations with condemnees.

D. Prior to commencing a condemnation action or threatening to commence a condemnation action, a condemnor shall:

(1) prepare an appraisal of the condemnee's property; and

(2) provide the condemnee with copies of all contracts to purchase and offers to purchase properties that are similar to the condemnee's property."

Section 2. Section 42A-1-5 NMSA 1978 (being Laws 1980, Chapter 20, Section 5) is amended to read:

"42A-1-5. APPRAISAL--OFFER.--

A. If the parties are unable to negotiate a settlement, the condemnee may, within twenty-five days after written notice by the condemnor of its intent to file a condemnation action in district court, give written notice to the condemnor requesting an appraisal to determine the amount that would constitute just compensation for the taking of the condemnee's property and obtained from:

(1) one appraiser appointed by the condemnor;

(2) one appraiser appointed by the condemnee; and

(3) one appraiser jointly appointed by the appraisers for the condemnor and the condemnee.

B. The condemnee and condemnor shall appoint their respective appraisers within fifteen days after notice has been given by the condemnee to the condemnor pursuant to the provisions of Subsection A of this section, and the third appraiser shall be jointly appointed within fifteen days thereafter.

C. The appraisals shall be in writing and signed by the appraisers. The appraisers shall deliver copies to each party personally or by registered mail or certified mail, return receipt requested.

D. The fees and expenses of the appraisers shall be paid by the [appointing parties; provided, however, the condemnee and condemnor shall share equally in paying the fees and expenses of the jointly appointed appraiser] condemnor.

E. After receiving a copy of the appraisals provided for pursuant to this section, the condemnor may establish an amount which it believes to be just compensation and may submit to the condemnee an offer to acquire the property for the full amount so established. If the condemnor tenders an offer pursuant to this section, the amount offered for the property shall not be less than the amount of compensation shown by the final common appraisal of the three appraisers, or, if all three appraisers do not agree, the offer shall not be less than the appraisal prepared by the condemnor's appraiser. The condemnee must reject or accept the offer made by the condemnor pursuant to this section within fifteen days after the offer is tendered."

Section 3. Section 42A-1-12 NMSA 1978 (being Laws 1980, Chapter 20, Section 12, as amended) is amended to read:

"42A-1-12. RECOVERY OF DAMAGES, COSTS AND EXPENSES.--

A. A condemnor is liable to the condemnee and, if applicable, to the person in actual physical occupancy of the property for trespass upon the property, for physical injury to [and] the property or for substantial interference with possession or use of the property caused by its entry and activities upon the property made pursuant to Section 42A-1-8 NMSA 1978. This liability may be enforced in a civil action against the condemnor or by application to the court in the circumstances provided by Subsection C of this section.

B. In an action or other proceeding for recovery of damages under this section, the prevailing claimant shall be allowed his reasonable costs. In addition, the court shall award the claimant his litigation expenses incurred in any proceeding [under Section 42A-1-9 or 42A-1-11 NMSA 1978] if it finds liability pursuant to Subsection A of this section and that the condemnor:

(1) entered the property unlawfully; or

(2) failed without just cause to substantially comply with or wrongfully exceeded or abused the authority of an order made under Section 42A-1-9 or 42A-1-11 NMSA 1978.

C. If funds are on deposit or a surety bond has been required under Section 42A-1-10 or 42A-1-11 NMSA 1978, the condemnee or other person claiming damages under Subsection A of this section may apply to the court for an award of the amount he is entitled to recover. The court shall determine the amount and award it to the person entitled thereto and direct that the payment be made out of the money on deposit or pursuant to the provisions of the bond. If the amount on deposit or the amount of the surety bond is insufficient to pay the full amount, the court shall enter judgment against the condemnor for the unpaid portion."

Section 4. Section 42A-1-25 NMSA 1978 (being Laws 1981, Chapter 125, Section 21) is amended to read:

"42A-1-25. LITIGATION EXPENSES.--

A. The court shall award the condemnee his litigation expenses whenever:

(1) the condemnor has abandoned the condemnation proceeding;

(2) the condemnation proceeding has been dismissed for any reason except when a bona fide settlement has been reached; [or]

(3) there is a final determination that the condemnor does not have a right to take the property sought to be acquired in the condemnation proceeding; or

(4) the court finds that the condemnor is liable to the condemnee, as provided in Section 42A-1-12 NMSA 1978.

B. Before awarding litigation expenses pursuant to this section, the court shall review the reasonableness of such expenses and fees."

Section 5. Section 42A-1-29 NMSA 1978 (being Laws 1981, Chapter 125, Section 25, as amended) is amended to read:

"42A-1-29. PROPERTY TAKEN OR DAMAGED WITHOUT COMPENSATION OR CONDEMNATION PROCEEDINGS--RIGHT OF ACTION BY CONDEMNEE.--

A. A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for triple the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest, to the date such just compensation is made, in an action to be brought under and governed by the Rules of Civil Procedure for the District Courts of this state. Actions under this section shall be brought in the county where the land or any portion thereof is located.

B. Notwithstanding the provisions of Subsection A of this section or any other provision of law regarding compensation for damage in the situation described in that subsection:

(1) if the person authorized had taken or been granted for public use, pursuant to a final judgment, an order of immediate possession or private agreement, any property;

(2) the property subsequently taken or damaged was contiguous to the property taken or granted; and

(3) the person takes or damages property contiguous to property previously taken or granted from the condemnee or grantor without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation; the condemnee or grantor shall receive compensation for the land taken or damaged at the [greater of fair market value or a unit rate of five times that of the compensation or consideration he received for the land taken; provided that if the width of the property taken or damaged is not equal to the width originally taken or damaged, compensation required pursuant to this subsection shall be increased or reduced ratably in accordance with the relationship of the respective widths] rate of three times fair market value.

C. Any amounts paid under Subsection B of this section shall be deemed just compensation."

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.