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7. Procedures in Continuing Title Evidence

It is the general practice in condemnation cases for the acquiring agency to furnish the Department with the preliminary evidence of title to land.

This preliminary evidence of title will necessarily predate the institution of proceedings, often by a substantial period. For purposes of instituting suit, the preliminary evidence of title may properly be relied upon for identification of those persons to be joined as original defendants. But prior to the distribution of any funds of deposit, settlement of the claim, or judicial determination of just compensation, the evidence of title must be continued to a time immediately subsequent to the commencement of notice by recordation of lis pendens , declaration of taking or judgment thereon to disclose the state of title at the time. Based upon the information disclosed by the continuation of the evidence of title, any additional parties shown to have, or who may claim to have, any interest in the property involved must be joined as defendants in the case and any changes in the naming of necessary and proper parties defendant must be effected (see USAM 5-15.530).

To continue the title evidence after the institution of an action, the U.S. Attorney shall request the local office of the acquiring agency to furnish:

  1. Title evidence, properly extended to a date subsequent to the time of filing the complaint in condemnation, in those states where such filing constitutes notice; or to the time of recordation of either a lis pendens notice, a declaration of taking, or a judgment on declaration of taking. See USAM 5-15.524.

  2. Copies of options, if any, on the land acquired. See USAM 5-15.523; and

  3. Certificates as to parties in possession and mechanics' liens claims (see ENRD Resource Manual at 47) dated immediately following the recordation of the lis pendens notice or the declaration of taking.

Upon receipt of the title evidence, duly extended, and certificates as to parties in possession and mechanics' liens, the U.S. Attorney shall:

  1. If the description of the property in the title evidence differs from that in the declaration of taking, request that the title evidence be amended or obtain a statement that the land examined by the title examiner is the same as that described in the declaration of taking;

  2. Examine the title evidence and such certificates to determine the persons having a possible compensable interest who should be joined as parties defendant:

    1. When joining unknown heirs and devisees of a deceased person, or any other persons having an apparent interest whose names cannot be ascertained, always add "unknown owners" as parties defendant; and

    2. Always join the state as a party defendant when you have named as parties defendant heirs in an unprobated estate, who are expected to share in the award. This is to clear inheritance tax liability which must be satisfied;

  3. If any parties are found by the title search to have an interest in the property who were not joined in the original complaint, prepare and file a pleading by which they may be joined as parties defendant. This may be accomplished by:

    1. A motion and order to add additional parties (see ENRD Resource Manual at 29);

    2. A supplemental complaint to add parties; or

    3. An amendment to the complaint to add parties (see ENRD Resource Manual at 26);

  4. Where a party dies or becomes incompetent, move for a hearing on a motion to substitute parties as provided by Rule 71A(g), Fed.R. of Civ.P. As to transfers of interest, however, see the Anti-Assignment Act, 31 U.S.C. § 203, and United States v. Dow, 357 U.S. 17.

  5. Obtain appropriate service of notice upon additional parties in the same manner as parties named in the original complaint in condemnation (see USAM 5-15.525 and ENRD Resource Manual at 8); and

  6. Request a current tax statement from the applicable taxing authorities (see ENRD Resource Manual at 50) and a current statement from other lienholders (see ENRD Resource Manual at 51) and take steps to see that all taxes and assessments which are a lien as of the date of taking are satisfied either by payment out of the deposit or by requiring the landowner to furnish a receipt or other evidence of payment.

[cited in USAM 5-15.533; USAM 5-15.540; ENRD Resource Manual 2]