The lawsuit
Possession before the amount is settled
In quick take states an agency can deposit its estimate with the court and take possession immediately. The owner may lose use of the property long before anyone decides what it was worth.
How it works
The sequence
The agency files its petition and deposits with the court an amount it says represents just compensation, usually its appraised figure. An order for possession follows, often quickly. The agency can then begin construction while the compensation dispute continues.
The owner can generally apply to withdraw the deposit. In most states this does not waive the right to argue for more, and the final award is adjusted against what was withdrawn. In some states it does waive certain rights, which is why it should never be done without checking.
If the final award is lower than the deposit, the owner usually has to repay the difference. That is rare, and it is a reason to be sure of the position before spending the money.
Consequences
What possession means in practice
| Issue | What usually happens |
|---|---|
| Access to the property | Ends on the date in the order, for the area taken |
| Construction | May begin immediately, changing the property before valuation evidence is complete |
| Evidence | Photographs and surveys taken before possession become the only record of the prior condition |
| Interest | Generally runs on the unpaid balance from the date of taking |
| Occupied property | Relocation assistance and notice requirements apply separately |
| Business operations | Continuity during construction is a negotiating point, and usually must be raised early |
Questions about the deposit
Can I refuse to give up possession
Once an order has been made, generally no. Challenges to possession orders are narrow and have to be made quickly.
Is the deposit the most I will get
No. It is the agency estimate. The determination of compensation follows and can be higher, and in many cases is.
My lender says the money has to go to them
Mortgagees usually have a claim on proceeds. How it is divided is a separate question that the court can determine, and it is worth raising early rather than at distribution.
Should I photograph everything before they take possession
Yes, thoroughly, with dates. Once construction starts, the condition of the property beforehand becomes a matter of evidence and photographs are the best evidence there is.
Not sure what to do next
Most owners are reacting to a document they did not expect. Working through it in order is easier than it looks.