A short one from the Virginia Court of Appeals. Very Virginia-specific, but there are lessons here for those of you outside the Old Dominion.
In City of Virginia Beach v. Mathias, No. 2073-23-1 (June 10, 2025), the court held that when a statute requires the condemnor to do something prior to taking property, the condemnor better do that thing. Close enough isn’t good enough.
In 2022, the Virginia General Assembly began requiring that at a time between the condemnor’s offer of purchase and when it files the certificate of take, it must undertake a title examination, among other things:
Notwithstanding any provision of law to the contrary, a condemnor, prior to making an offer to acquire a fee simple interest in property by purchase or filing a certificate of take or certificate of deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) or § 33.2-1019, shall (i) conduct or cause to be conducted an examination of title to the property in order to ascertain the identity of each owner of such property and to determine the nature and extent of such owner’s interests in the property, which examination of title shall be for at least 60 years; (ii) provide to such owner or owners a copy of the report showing the examination of title; and (iii) provide to such owner or owners a copy of all recorded instruments within the 60-year title history of such property, including all deeds of trust, releases, liens, deeds, or other instruments identified in the report.
Virginia Beach wanted to take the Mathias property for a road project. It made an offer to purchase, then commissioned a “title commitment” which it provided to the owners. When the parties could not reach agreement on a voluntary purchase, the city filed a petition for condemnation. The owners objected to the taking, claiming that the City had provided them with some — but not all — of the documents the statute requires. The City responded that it complied with the statute (but if it didn’t, this was just a technical failure and did not invalidate the taking).
The trial court agreed, and invalidated the certificate of taking. Dismissed without prejudice. The city appealed.
After rejecting some preliminary objections that the statute didn’t cover this taking, the court of appeals affirmed. “The City is obligated to strictly comply with the condemnation statutes’ requirements.” Slip op. at 9. There are some disjunctive parts of the statute (codenmnor may provide a or b), and some conjunctive (condemnor must provide a, b, and c).
As the court put it:
Put plainly, Code § 25.1-204(D) requires that, before a condemnor starts the process to obtain title to property by either:
1. offering to buy it,
2. filing a certificate of take, or
3. filing a certificate of deposit,
the condemnor must first:
i. get an examination of title going back 60 years that permits identifying (a) each owner of the property and (b) what interests they have in the property,
ii. give the owner the report showing that examination of title, and
iii. give the owner a copy of all deeds, deeds of trust, releases, liens, or any other instrument identified in the report going back 60 years.
Thus, before the City filed its certificate of take, it needed to comply with subsections (i), (ii), and (iii) of Code § 25.1-204(D). The circuit court found that the City did not comply with Code § 25.1-204(D), and that finding has evidentiary support.
Slip op. 10.
Next, the court rejected the city’s argument that “examination of title” is synonymous with “title commitment,” “title report,” and “status of title.” Id. Even though these terms are not defined by the statute, the plain meaning of “examination of title” is not the same as “title commitment.” An examination of title “‘is a critical analysis or interpretation of the condition of title revealed by the documents disclosed’ through a title search.” Slip op. at 11 (quotation omitted). But a title commitment is something else and here, the city’s title commitment “did not contain the contents of a complete examination of title as required by [the Code].” Slip op. at 13.
Finally, the court rejected the city’s claim that close enough is good enough, because it “substantially complied” with the statute. “Again, we disagree.” Slip op. at 14. Eminent domain statutes require strict compliance, and the trial court did not abuse its discretion in dismissing the taking (without prejudice), rather than let what appeared to be a good faith mistake by the city go by.
City of Virginia Beach v. Mathias, No. 2073-23-1 (Va. Ct. App. June 10, 2025)