Massachusett's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  The power of eminent domain, as an inherent sovereign power, may be exercised by the Commonwealth and all its offices, agencies or authorities to which the power has been delegated by statute. These include the Massachusetts Department of Transportation and departments within the Executive Offices of Administration and Finance and of Environmental Affairs. Public authorities such as the Turnpike Authority and the Massachusetts Bay Transportation Authority also have the power of eminent domain. The legislature has also granted the power of eminent domain to housing authorities and urban renewal authorities, counties, cities and towns. (M. G. L. c. 121B). The power of eminent domain may also be delegated to private corporations deemed to be serving a public purpose, such as a public utility.

• What Are the Legal Requirements for Exercising the Power?

  Condemnation in Massachusetts is governed by Massachusetts General Laws chapter 79. The taking process starts with the designated taking authority, acting by and through a board of officers duly authorized to act (M. G. L. c. 79, § 2), voting to adopt an Order of Taking (M. G. L. c. 79, § 1) which must describe the property, state the interest taken (e.g., fee: all or a part; easement: temporary or permanent) and the purpose for which the taking is made. Within thirty days of the vote, the Order must be recorded (M. G. L. c. 79, § 3) or filed for registration (M. G. L. c. 79, § 4) in the county Registry of Deeds in which the property to be condemned lies. Recording the Order is the act of taking; title vests in the taking authority upon recording. Failure to record the Order timely renders the vote to take void. Notice that the taking has been made (i.e., post recording) is required of all taking authorities (M. G. L. c. 79, § 7C).
  
  The amount of the award is to be offered and tendered to all parties having an interest in the property taken within sixty days of recording (M. G. L. c. 79, § 8A). There is no deposit into court. The owner may either accept the money awarded as full and final just compensation or as an award pro tanto. An owner who accepts the award pro tanto has three years from the date when title vests in the taking authority, not from the date of the vote or the date of the Order itself (M. G. L. c. 79, § 16), to file a lawsuit, termed a petition for assessment of damages (M. G. L. c. 79, § 14) for a jury to determine the fair market value of the property taken.

• What Limitations or Defenses Exist?

  The only limits on the power of eminent domain are constitutional and require that the property be used for a public purpose and that the owner be paid just compensation. Benevolent and Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence, 403 Mass. 531, 539 (1988); Massachusetts Constitution, Declaration of Rights, Article 10. An owner may challenge the bona fides of a taking in the same proceeding to determine just compensation or in a separate action. The grounds recognized by Massachusetts courts to set aside a taking are either where there has been a finding that the taking was not made for a public purpose or if the taking was made in bad faith. Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771 (1987) (as to bad faith).

• What Constitutes a Public Purpose?

  Taking authorities generally have wide discretion to determine what land is essential for a public improvement. Courts, however, retain the power of judicial review to determine whether there is a legitimate public purpose for the taking. Massachusetts law grants urban renewal agencies the authority to take property by eminent domain whenever it determines the taking is necessary to effectuate the goals of urban renewal, which include the elimination of “decadent, substandard or blighted” areas and the promotion of the “sound growth of the community.” (G. L. c. 121B, § 45); see also Marchese v. Boston Redevelopment Auth., 483 Mass. 149 (2019); Mahajan v. Dept. of Envtl. Protec., 464 Mass. 604, 606 (2013).

• How is Just Compensation Determined?

  Damages are measured by the fair market value of the property at the time of the taking. The date of taking is the date the order of taking is recorded in the registry of deeds, not the date of the vote to take. (M. G. L. c. 79, § 12); Kinney v. Commonwealth, 332 Mass. 568, 572 (1955).

• How Is Fair Market Value Defined?

  The fair market value of the property taken is determined in light of the highest and best use to which the property could reasonably be put. Douglas Envtl. Assocs. v. Dep’t of Envtl. Prot., 429 Mass. 71, 75 (1999). Highest and best use is defined by appraisers to be that reasonable and probable use that supports the highest value of that use, from among reasonably probable and legal alternative uses, found to be physically possible, appropriately supported, and financially feasible, that results in the highest value.

• What About Recovering Damages to Remaining Property?

  If only a portion of the property is taken, the owner is entitled to the value of the property taken and to any diminution in value to the property which remains. (M. G. L. c. 79, § 12). Severance damages are commonly measured by the difference between the fair market value of the property before the taking and the fair market value of the remainder after the taking. Rodman v. Commonwealth, 89 Mass. App. Ct. 500, 504 (2014).

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Attorneys’ fees incurred by an owner in pursuing just compensation for the taking of his property are not recoverable against the taking authority. Similarly, fees and expenses for expert witnesses, such as appraisers and engineers, are not recoverable against the taking authority. The only reimbursement that the owner is entitled to pursue against the taking authority are for filing fees associated with instituting the action to challenge the damage award, sheriffs’ fees for service of a summons or subpoena, and costs incurred for trial exhibit preparation such as photographs, certified copies of deeds and the like. (M. G. L. c. 79, § 38). Such costs are reimbursable only if an award of damages has been made and the damages are increased above the pro tanto. A motion to allow costs is filed post-trial.

• Can the Government Take Possession of the Landowner’s Property Before Final Compensation is Paid?

  Massachusetts is what is referred to as a quick-take state. The taking authority may take possession of the condemned property prior to a final adjudication of damages.