Disclaiming Eminent Domain Defendants: To Dismiss or not to Dismiss?


Recently, we came across an interesting request from an attorney for a condemnee.  The condemnee had filed a Disclaimer in the eminent domain action, stating that they had no interest in the property being condemned.  This, from our experience, is typically where things end. 

But the attorney asked that we proceed to dismiss the disclaiming party.  I had not heard of this before, and it seemed an odd request.  The attorney assured us, however, that this is common practice in that attorney's work.  More importantly, the attorney almost always represents public agencies; in other words, the attorney's statement that they do this as a matter of course when on the agency side warranted some consideration.    

We thought about it for a while, but couldn't get past one fundamental problem.  If the disclaiming party is dismissed, they will not appear in the Final Judgment and will not appear in the Final Order of Condemnation that gets recorded -- and that effects the actual transfer of title. 

To me, that is a big problem.  While we certainly do not want to burden a defendant who has filed a Disclaimer, we also want to make sure that we obtain clear title on behalf of our agency clients.  A dismissal could theoretically call that into question, especially if it turns out that the dismissed party really did have an interest in the property. 

It actually is not all that uncommon that a defendant with an actual interest disclaims.  It may be a decades-old, unused easement interest.  It really exists, but likely has little to no value and the defendant has no interest in participating in the litigation.  But at the end, the agency certainly wants its Final Order to wipe out that easement. 

The bottom line is that after discussing it internally, we concluded that a dismissal is not warranted, even where a defendant disclaims. 

Our advice in such situations:  the agency and defendant should reach an agreement to remove the defendant from the service list.  On the one hand, the defendant will have no further participation in the lawsuit, and will not be bothered by the barrage of filings that will occur, especially if the matter proceeds to trial.  On the other hand, the agency will still be able to include the disclaiming defendant in its judgment and Final Order, ensuring clean title.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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