HOUSE BILL 365
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Matthew McQueen and Phil A. Griego
AN ACT
RELATING TO REAL PROPERTY; PROVIDING PROTECTION TO REAL PROPERTY OWNERS AGAINST EMINENT DOMAIN.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 42A-1-6 NMSA 1978 (being Laws 1980, Chapter 20, Section 6, as amended) is amended to read:
"42A-1-6. PRELIMINARY EFFORTS TO PURCHASE.--
A. Except as provided in Sections 42A-1-7 and 42A-1-27 NMSA 1978, an action to condemn property may not be maintained over timely objection by the condemnee unless the condemnor made a good faith effort to acquire the property by purchase before commencing the action. A good-faith effort as required by this subsection shall include a good-faith, final and best offer, delivered in writing by the condemnor to the condenmee.
B. An offer to purchase made in substantial compliance with Sections 42A-1-3 through 42A-1-4 NMSA 1978 is prima facie evidence of good faith [under] pursuant to Subsection A of this section.
C. An action to condemn property shall not be instituted until after all regulatory approvals necessary for the intended use of the property after condemnation, other than local building permits as applicable, have been obtained by the condemnor."
SECTION 2. Section 42A-1-24 NMSA 1978 (being Laws 1981, Chapter 125, Section 20, as amended by Laws 2001, Chapter 10, Section 1 and also by Laws 2001, Chapter 320, Section 1) is amended to read:
"42A-1-24. DETERMINATION OF COMPENSATION AND DAMAGES--
INTEREST.--
A. For the purposes of assessing compensation and damages, the right thereto shall be deemed to have accrued as of the date the petition is filed, and actual value on that date shall be the measure of compensation for all property taken, and also the basis of damages for property not taken but injuriously affected in cases where such damages are legally recoverable; the amount of the award shall be determined from the evidence and not be limited to any amount alleged in the petition or set forth in the answer.
B. Whenever just compensation shall be ascertained and awarded in such proceeding and established by judgment, the judgment shall include as a part of the just compensation awarded interest at the rate of ten percent a year upon the unpaid portion of the compensation awarded from the date the petition is filed to the date of payment or the date when the proceedings are finally abandoned. The judgment shall not include interest upon the amount represented by funds deposited by the condemnor pursuant to the provisions of Sections 42A-1-19 and 42A-1-22 NMSA 1978.
C. The court shall have the power to direct the payment of delinquent taxes, special assessments and rental or other charges owed out of the amount determined to be just compensation and to make orders as the court deems necessary with respect to encumbrances, liens, rents, insurance and other just and equitable charges.
D. The judgment shall credit against the total amount awarded to the condemnee any payments or deposits paid over to [him] the condemnee made before the date of entry of judgment by the condemnor as compensation for the property taken, including any funds [which] that the condemnee withdrew from the amount deposited by the condemnor pursuant to the provisions of Section 42A-1-19 or 42A-1-22 NMSA 1978.
E. If the amount to be credited against the award under Subsection D of this section exceeds the total amount awarded, the court shall require that the condemnee pay the excess to the condemnor.
F. The price paid for similar property by one other than the condemnor may be considered on the question of the value of the property condemned or damaged if there is a finding that there have been no material changes in conditions between the date of the prior sale and the date of taking, that the prior sale was made in a free and open market and that the property is sufficiently similar in the relevant market with respect to situation, usability, improvements and other characteristics.
G. If, prior to the date that a petition is filed pursuant to Section 42A-1-17 NMSA 1978, the threat of condemnation or the intended use of the property after condemnation has, in the professional judgment of the appraisers, depressed the value of the property, the value of the property shall be determined in a manner to reflect its market value in the absence of the threat of condemnation or the intended use of the property after condemnation."
SECTION 3. 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] the condemnee's 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) in the event the condemnor is a non-governmental entity, the final award is more than the good-faith, final and best offer delivered to the condemnee by the condemnor in compliance with Subsection A of Section 42A-1-6 NMSA 1978.
B. Before awarding litigation expenses pursuant to this section, the court shall review the reasonableness of such expenses and fees.
C. In no event shall the court award the condemnor its litigation expenses."
SECTION 4. Section 42A-1-26 NMSA 1978 (being Laws 1981, Chapter 125, Section 22) is amended to read:
"42A-1-26. MEASURE OF DAMAGE TO REMAINDER IN PARTIAL CONDEMNATION.--
A. In any condemnation proceeding in which there is a partial taking of property, the measure of compensation and damages resulting from the taking shall be the difference between the fair market value of the entire property immediately before the taking and the fair market value of the property remaining immediately after the taking. In determining such difference, all elements [which] that would [enhance or] diminish the fair market value before and after the taking shall be considered, [even though some of the damages sustained by the remaining property, in themselves, might otherwise be deemed noncompensable. Further, in determining such values or differences therein, elements which would enhance or benefit any property not taken shall only be considered for the purpose of offsetting any damages or diminution of value to the property not taken] including any depression of the market value of the property as a result of the mere threat of condemnation or the intended use of the property after condemnation.
B. If the damages resulting from the taking, as determined pursuant to Subsection A of this section, equal or exceed fifty percent of the market value of the property, the condemnee, at the condemnee's discretion, may require the condemnor to acquire the entire tract affected, at its full market value, provided that, if the condemnee so requires, the condemnor may in lieu thereof abandon the condemnation proceeding."
SECTION 5. Section 42A-1-33 NMSA 1978 (being Laws 1981, Chapter 125, Section 28) is amended to read:
"42A-1-33. EASEMENT--ABANDONMENT.--Except as specifically provided by law, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, or the intended public use has not been implemented within five years from the date at which the condemnor is authorized to take possession of the property, the easement is extinguished and the possession of the property reverts to the owner or [his] the owner's successor in interest of the fee free from any rights in the condemnor."
SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.
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