Objection to Declaration of Taking - Alabama

OBJECTION TO DECLARATION OF TAKING (OBJECTION TO CONDEMNATION / ORDER OF CONDEMNATION AND POSSESSION) — ALABAMA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Grounds for Objection
4. Request to Deny Condemnation / Set Aside or Stay the Order and Possession; Limit the Taking
5. Objection to the Award/Deposit and Reservation re Withdrawal Without Waiver
6. Reservation of Just Compensation, Severance Damages, Interest, Costs, and Fees
7. Notice of Appeal / Demand for Trial De Novo and Jury
8. Prayer for Relief
9. Verification
10. Signature and Service Blocks
11. Certificate of Service
12. Alabama Practice Notes
13. Sources and References

1. CAPTION

IN THE [PROBATE / CIRCUIT] COURT OF [________________________________] COUNTY, ALABAMA

Case No. [________________________________]

Parcel / Project No(s).: [________________________________]

OBJECTION TO CONDEMNATION AND TO THE ORDER OF CONDEMNATION / IMMEDIATE POSSESSION; (AND, IF APPLICABLE) NOTICE OF APPEAL AND DEMAND FOR TRIAL DE NOVO AND JURY

2. INTRODUCTION

Defendant(s) [LANDOWNER NAME(S)] ("Owner"), owner(s) of an interest in the real property identified as Parcel No. [________], more particularly described in Exhibit A (the "Subject Property"), by and through undersigned counsel, object to the condemnation of the Subject Property by [CONDEMNOR NAME] ("Condemnor") and state:

1. On [__/__/____], the Condemnor applied to the Probate Court of [________] County for an order of condemnation under Ala. Code § 18-1A-270, seeking to acquire the Subject Property and (where applicable) to obtain immediate possession on payment/deposit.

2. Alabama does not use a federal-style "declaration of taking." Title does not vest merely upon filing and deposit; condemnation proceeds through the probate court's statutory process. Ala. Code § 18-1A-23 bars compelled surrender before the condemnor pays the agreed price or pays or deposits the condemnation-order award. During an appeal, § 18-1A-289 permits entry upon deposit in circuit court of the assessed compensation and costs; Ala. Const. art. XII, § 235 separately requires a bond of at least double the assessed damages when the condemnor is a municipal or other corporation or an individual invested with the taking privilege. Owner objects to the right to take, public use and necessity, procedural compliance, the commissioners' award/deposit, and immediate possession, and (where applicable) appeals to the Circuit Court for a trial de novo under Ala. Code § 18-1A-283.

3. GROUNDS FOR OBJECTION

Owner asserts the following grounds (check all that apply):

3.1 Lack of Authority / No Right to Take

• ☐ The Condemnor lacks statutory or constitutional authority to take the Subject Property, or the interest sought, by eminent domain, or has exceeded its delegated authority (Ala. Code § 18-1A-1 et seq.).
• ☐ The taking is barred by Alabama's anti-Kelo limits (Ala. Code § 18-1B-1 et seq.; § 11-47-170; § 11-80-1) because it is for private use, for transfer to a private party, or is improperly justified by blight/redevelopment.

3.2 Lack of Public Use or Purpose

• ☐ The taking does not serve a public use (Ala. Const. art. I, § 23).
• ☐ The stated public purpose is pretextual; the actual beneficiary is a private party.

3.3 Lack of Necessity

• ☐ The taking of the Subject Property, or its extent/configuration, is not reasonably necessary for the project; the Condemnor acted arbitrarily, in bad faith, or in abuse of discretion.
• ☐ Feasible alternative routes/footprints exist that the Condemnor rejected without adequate analysis.

3.4 Excessive Taking / Estate Taken Too Broad

• ☐ The Condemnor seeks more land, or a greater estate or interest (e.g., fee where an easement would suffice), than is reasonably necessary; the taking should be denied or narrowed.

3.5 Procedural and Notice Defects in the Application / Award / Possession

• ☐ The Condemnor failed to make the bona fide offer to purchase that is a prerequisite to the action (Ala. Code § 18-1A-55), or failed to comply with the appraisal/full-value offer requirements (§§ 18-1A-21, -22).
• ☐ The application for the order of condemnation is defective in form or content under Ala. Code § 18-1A-270 (including any required authority/affidavit).
• ☐ The commissioners were improperly appointed, or their report/award is defective under §§ 18-1A-275, -276.
• ☐ The Condemnor seeks possession without making the payment or deposit required by Ala. Code §§ 18-1A-23 and -289; and, if the Condemnor is within Ala. Const. art. XII, § 235, without giving the bond of at least double the assessed damages required by that section.
• ☐ Defective or untimely process/service.
• ☐ Other procedural defect: [________________________________]

3.6 Inadequacy of the Commissioners' Award / Deposit

• ☐ The commissioners' award / deposited amount ($[____________]) is substantially below fair market value and does not constitute just compensation under Ala. Const. art. I, § 23.
• ☐ The award fails to account for: ☐ severance/remainder damages ☐ loss of or impairment of access ☐ improvements/fixtures ☐ cost to cure ☐ other: [________________________________]

3.7 Defective Good-Faith Offer / Pre-Suit Negotiation

• ☐ The Condemnor failed to negotiate in good faith and/or to make the offer to purchase required by Ala. Code § 18-1A-55 before commencing the action.
• ☐ Other: [________________________________]

4. REQUEST TO DENY CONDEMNATION / SET ASIDE OR STAY THE ORDER AND POSSESSION; LIMIT THE TAKING

4.1. Owner requests that the Court deny the application for an order of condemnation (or set aside any order of condemnation) for lack of authority/right to take, absence of public use, lack of necessity, excessive taking, and/or procedural defects.

4.2. In the alternative, Owner requests that the Court limit the estate or quantity taken to what is reasonably necessary.

4.3. Owner objects to any immediate possession unless and until the Condemnor makes the payment or deposit required by Ala. Code §§ 18-1A-23 and -289 and, if Ala. Const. art. XII, § 235 governs this Condemnor, gives the bond of at least double the assessed damages required by that section. Owner requests that possession be stayed until every applicable condition is satisfied and during the § 18-1A-283 appeal except as current law permits.

5. OBJECTION TO THE AWARD/DEPOSIT AND RESERVATION RE WITHDRAWAL WITHOUT WAIVER

5.1. Owner objects to the commissioners' award/deposit as inadequate and asks that just compensation be redetermined on the § 18-1A-283 de novo appeal.

5.2. Before accepting or withdrawing any deposited award, Owner requests an order identifying the effect of withdrawal on each preserved objection, defense, and claim. This form does not represent that withdrawal is automatically without prejudice or waiver. Counsel must determine the governing withdrawal and waiver rule for the Condemnor and project before funds are withdrawn.

6. RESERVATION OF JUST COMPENSATION, SEVERANCE DAMAGES, INTEREST, COSTS, AND FEES

If the Court (or, on appeal, the jury) determines the Condemnor has the right to take, Owner demands full just compensation, including:

6.1. Interest. The judgment shall include interest on the compensation awarded at the rate fixed by Ala. Code § 18-1A-211 (a market-based one-year-constant-maturity rate); verify the current formula and accrual dates.

6.2. Costs and fees. Owner reserves taxable costs and, to the extent allowed by statute or case law (including litigation-expense recovery where an action is dismissed — Ala. Code § 18-1A-232), attorney's, appraisal, and expert fees.

6.3. Owner reserves all relocation assistance benefits available under applicable state and federal law (42 U.S.C. § 4601 et seq.).

7. NOTICE OF APPEAL / DEMAND FOR TRIAL DE NOVO AND JURY

7.1. ☐ If an order of condemnation has been entered, Owner hereby appeals to the Circuit Court of [________] County under Ala. Code § 18-1A-283 and demands a trial de novo. This appeal is filed within thirty (30) days of the order of condemnation (§ 18-1A-282).

7.2. ☐ Owner demands a trial by jury on the de novo appeal, on the right to take (where reviewable) and on just compensation (Ala. Const. art. XII, § 235; trial as in other civil cases).

8. PRAYER FOR RELIEF

WHEREFORE, Owner respectfully requests that the Court:

1. ☐ Deny the application for an order of condemnation (or set aside the order of condemnation) for lack of authority/right to take, absence of public use, lack of necessity, excessive taking, and/or procedural defects;

2. ☐ In the alternative, limit the estate/quantity taken to what is reasonably necessary;

3. ☐ Stay or deny immediate possession unless the Condemnor makes the payment or deposit required by Ala. Code §§ 18-1A-23 and -289 and, where Ala. Const. art. XII, § 235 applies, gives the bond of at least double the assessed damages required by that section;

4. ☐ On the § 18-1A-283 de novo appeal, empanel a jury and award full just compensation of not less than $[____________], with interest under Ala. Code § 18-1A-211;

5. ☐ Determine, before any withdrawal, the effect of accepting or withdrawing deposited funds on Owner's right-to-take challenge, appeal, and compensation claims;

6. ☐ Award taxable costs and fees as allowed by law (including § 18-1A-232 litigation expenses if the action is dismissed/abandoned); and

7. ☐ Grant such other and further relief as the Court deems just and proper.

9. VERIFICATION

STATE OF ALABAMA

COUNTY OF [________________________________]

I, [OWNER NAME], being first duly sworn, state that I am the Defendant/Owner (or authorized representative) in the above-captioned matter, that I have read the foregoing Objection, and that the facts stated in it are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[OWNER NAME]

Subscribed and sworn to before me this [____] day of [________________], 20[____].

[________________________________]

Notary Public

My Commission Expires: [__/__/____]

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Alabama State Bar No. [________]

Attorney for Defendant(s) / Property Owner(s)

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing OBJECTION was served on all counsel and parties of record by the method(s) indicated below, in accordance with the Alabama Rules of Civil Procedure:

☐ AlaFile / court electronic filing and service
☐ U.S. Mail, postage prepaid
☐ Certified mail, return receipt requested
☐ Hand delivery
☐ Email (by agreement / per rule)
☐ Other: [________________________________]

Condemnor's Counsel: [________________________________]

[________________________________]

[________________________________]

(Signature) [________________________________]

12. ALABAMA PRACTICE NOTES

• No declaration of taking. Alabama has no federal-style declaration of taking that vests title on filing/deposit. Condemnation begins by application to the PROBATE COURT for an order of condemnation (Ala. Code § 18-1A-270); commissioners report an award (§§ 18-1A-275, -276); the court enters an order of condemnation (§ 18-1A-282). Quick-take possession is limited and turns on payment/deposit.
• Possession conditions depend on the condemnor. Ala. Code § 18-1A-23 bars compelled surrender before payment of the agreed price or payment/deposit of the condemnation-order award. Section 18-1A-289 permits entry during an appeal upon deposit in circuit court of the assessed compensation and costs; it does not itself require a bond. Ala. Const. art. XII, § 235 adds a bond of at least double the assessed damages for the municipal, corporate, and individual condemnors within that section. Identify the condemnor before selecting the bond objection.
• Right-to-take vehicle / 30-day appeal. The right to take, public use, and necessity are litigated in probate and, decisively, on a TRIAL DE NOVO in circuit court under Ala. Code § 18-1A-283 — appeal MUST be filed within 30 days of the ORDER OF CONDEMNATION (§ 18-1A-282). An owner cannot appeal the preliminary order granting condemnation; must await the order of condemnation. Ex parte Alabama Power Co. (Ala. 2018). Calendar the 30-day deadline; it is jurisdictional.
• Jury on appeal. Probate uses commissioners, not a jury; the jury right (and the right-to-take/compensation retrial) attaches on the § 18-1A-283 de novo circuit-court appeal (Ala. Const. art. XII, § 235).
• Deposit withdrawal / waiver. The verified sections cited in this form do not create an automatic withdrawal-without-waiver rule. Preserve the timely § 18-1A-283 appeal and obtain a project- and condemnor-specific ruling before withdrawing funds while contesting the taking.
• Pre-suit offer. A bona fide offer to purchase is a prerequisite to the action (Ala. Code § 18-1A-55); appraisal and full-value offer rules at §§ 18-1A-21, -22. Test compliance.
• Compensation / interest. Partial takings use the before-and-after rule (Ala. Code § 18-1A-170(b)); interest on the award is set by § 18-1A-211 (market-based rate — verify the current formula). Litigation expenses on a dismissed/abandoned action: § 18-1A-232.
• Anti-Kelo limits. Ala. Code § 18-1B-1 et seq., § 11-47-170, and § 11-80-1 restrict takings for private use/transfer and condition redevelopment/blight takings.

13. SOURCES AND REFERENCES

• Ala. Const. art. I, § 23; art. XII, § 235 (just compensation first; entry pending appeal on payment + double bond; jury on appeal)
• Ala. Code § 18-1A-1 et seq. (Alabama Eminent Domain Code) — https://law.justia.com/codes/alabama/title-18/chapter-1a/
• Ala. Code § 18-1A-23 (payment/deposit before surrender of possession)
• Ala. Code § 18-1A-55 (offer to purchase as prerequisite)
• Ala. Code § 18-1A-170 (compensation; partial-taking before-and-after rule)
• Ala. Code § 18-1A-211 (interest on compensation awarded)
• Ala. Code § 18-1A-232 (litigation expenses on dismissed action)
• Ala. Code § 18-1A-270 (application to probate court for order of condemnation)
• Ala. Code §§ 18-1A-275, -276 (commissioners; report/award)
• Ala. Code § 18-1A-282 (order of condemnation)
• Ala. Code § 18-1A-283 (appeal to circuit court; trial de novo within 30 days)
• Ala. Code § 18-1A-289 (effect of order; entry pending appeal upon deposit of assessed compensation and costs) — https://alison.legislature.state.al.us/code-of-alabama?section=18-1A-289
• Ala. Code § 18-1B-1 et seq.; § 11-47-170; § 11-80-1 (anti-Kelo limits)
• Ex parte Alabama Power Co., __ So. 3d __ (Ala. 2018) (must appeal the order of condemnation, not the preliminary order; § 18-1A-283)
• 42 U.S.C. § 4601 et seq. (Uniform Relocation Assistance Act)

Disclaimer: This template is for informational purposes only and is not legal advice. Alabama condemnation proceeds through the probate court, and a § 18-1A-283 appeal must be filed within 30 days of the order of condemnation. Possession requires the payment or deposit prescribed by current law; the separate double-bond rule in Ala. Const. art. XII, § 235 applies only to the condemnors within that section. An attorney licensed in Alabama must review and customize this document, and verify all authorities and deadlines, before filing.