Idaho Code 7-711A – Advice of Rights Form — Rights When Condemning Authority Acquires Property
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Whenever a state or local unit of government or a public utility is beginning negotiations to acquire a parcel of real property in fee simple, the condemning authority shall provide the owner of the property a form containing a summary of the rights of an owner of property to be acquired under this chapter. If the condemning authority does not supply the owner of the real property with this form, there will be a presumption that any sale or contract entered into between the condemning authority and the owner was not voluntary and the condemning authority may be held responsible for such relief, if any, as the court may determine to be appropriate considering all of the facts and circumstances. The form shall contain substantially the following:
(1) The (name of entity allowed to use eminent domain proceedings pursuant to chapter 7, title 7, Idaho Code) has the power under the constitution and the laws of the state of Idaho and the United States to take private property for public use. This power is generally referred to as the power of "eminent domain" or condemnation. The power can only be exercised when:
(a) The property is needed for a public use authorized by Idaho law;
(b) The taking of the property is necessary to such use;
(c) The taking must be located in the manner which will be most compatible with the greatest public good and the least private injury.
Terms Used In Idaho Code 7-711A
- Appraisal: A determination of property value.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Contract: A legal written agreement that becomes binding when signed.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Fee simple: Absolute title to property with no limitations or restrictions regarding the person who may inherit it.
- person: includes a corporation as well as a natural person;
Idaho Code 73-114Property: includes both real and personal property. See Idaho Code 73-114 Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land. Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant. State: when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may include the District of Columbia and territories. See Idaho Code 73-114
(2) The condemning authority must negotiate with the property owner in good faith to purchase the property sought to be taken and/or to settle with the owner for any other damages which might result to the remainder of the owner’s property.
(3) The owner of private property to be acquired by the condemning authority is entitled to be paid for any diminution in the value of the owner’s remaining property which is caused by the taking and the use of the property taken proposed by the condemning authority. This compensation, called "severance damages," is generally measured by comparing the value of the property before the taking and the value of the property after the taking. Damages are assessed according to Idaho Code.
(4) The value of the property to be taken is to be determined based upon the highest and best use of the property.
(5) If the negotiations to purchase the property and settle damages are unsuccessful, the property owner is entitled to assessment of damages from a court, jury or referee as provided by Idaho law.
(6) The owner has the right to consult with an appraiser of the owner’s choosing at any time during the acquisition process at the owner’s cost and expense.
(7) The condemning authority shall deliver to the owner, upon request, a copy of all appraisal reports concerning the owner’s property prepared by the condemning authority. Once a complaint for condemnation is filed, the Idaho rules of civil procedure control the disclosure of appraisals.
(8) The owner has the right to consult with an attorney at any time during the acquisition process. In cases in which the condemning authority condemns property and the owner is able to establish that just compensation exceeds the last amount timely offered by the condemning authority by ten percent (10%) or more, the condemning authority may be required to pay the owner’s reasonable costs and attorney’s fees. The court will make the determination whether costs and fees will be awarded.
(9) The form contemplated by this section shall be deemed delivered by United States certified mail, postage prepaid, addressed to the person or persons shown in the official records of the county assessor as the owner of the property or if hand delivered to such person who acknowledges receipt of the form in writing on the form. A second copy will be attached to the appraisal at the time it is delivered to the owner.
(10) If a condemning authority desires to acquire property pursuant to this chapter, the condemning authority or any of its agents or employees shall not give the owner any timing deadline as to when the owner must respond to the initial offer which is less than thirty (30) days. A violation of the provisions of this subsection shall render any action pursuant to this chapter null and void.
(11) Nothing in this section changes the assessment of damages set forth in section 7-711, Idaho Code.