Objection to Declaration of Taking - Delaware

OBJECTION TO THE TAKING; MOTION TO VACATE OR LIMIT THE EX PARTE ORDER OF POSSESSION (10 DEL. C. § 6110); AND MOTION TO INCREASE THE DEPOSIT — DELAWARE

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Grounds for Objection
4. Motion to Vacate or Limit the § 6110 Ex Parte Order of Possession
5. Motion to Increase the Deposit and to Withdraw Without Prejudice
6. Reservation of Just Compensation, Severance Damages, and Costs
7. Demand for Hearing and Jury
8. Prayer for Relief
9. Verification
10. Signature and Service
11. Certificate of Service
12. Delaware Practice Notes
13. Sources and References

1. CAPTION

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

C.A. No. [________________________________]

Tax Parcel / Property ID: [________________________________]

DEFENDANT'S OBJECTION TO THE TAKING; MOTION TO VACATE OR LIMIT THE EX PARTE ORDER OF POSSESSION (10 DEL. C. § 6110); AND MOTION TO INCREASE THE DEPOSIT

2. INTRODUCTION

Defendant(s) [LANDOWNER NAME(S)] ("Owner"), owner(s) of an interest in the real property identified as Tax Parcel [________] and more particularly described in Exhibit A (the "Subject Property"), by and through undersigned counsel, object to the taking, move to vacate or limit Plaintiff's ex parte order of possession, and move to increase the deposit, and state:

2.1. On [__/__/____], Plaintiff [CONDEMNOR NAME] ("Condemnor") commenced this condemnation proceeding in the Superior Court under 10 Del. C. ch. 61.

2.2. On [__/__/____], Condemnor filed a Notice of Intention to Take Possession and deposited $[____________] as its estimate of just compensation under 10 Del. C. § 6110(a), and the Court entered (or Condemnor seeks) an ex parte order placing Condemnor in possession of the Subject Property on or after [__/__/____], before any judicial determination of the right to take or of just compensation.

2.3. Owner timely files this Objection and these Motions within the time to answer stated in the summons and under the Superior Court Civil Rules (see 10 Del. C. §§ 6103, 6107), and reserves and asserts the objections to the right to take below. Owner moves to vacate, modify, or limit any ex parte order of possession.

3. GROUNDS FOR OBJECTION

Owner objects to the taking on the following grounds (check all that apply). These objections to the right to take are asserted by answer under 10 Del. C. § 6107 and the Delaware and federal constitutions:

3.1. Lack of Authority / Right to Take

☐ The Condemnor lacks the statutory or constitutional authority to acquire the Subject Property, or the interest sought, by eminent domain, or has exceeded its delegated authority.

☐ The complaint fails to contain the short and plain statement of authority and of the use for which the property is taken "consistent with § 9501A of Title 29," or fails to plead compliance with 29 Del. C. § 9505(15), as required by 10 Del. C. § 6105(b).

3.2. Lack of Public Use / Public Purpose

☐ The taking does not serve a "public use" as defined and limited by 29 Del. C. § 9501A. "Public use" does not include generation of public revenues, increase in tax base or tax revenues, employment, or economic health through private landowners or economic development (§ 9501A(a)).

☐ The Subject Property will be owned, occupied, or developed by a private party, so the Condemnor must establish public use by clear and convincing evidence under 29 Del. C. § 9501A(d), and a § 6105(e) hearing must be held for the Condemnor to meet that burden.

3.3. Lack of Necessity

☐ The taking is not necessary for the project, and/or the Subject Property is not necessary for the stated public use; the Condemnor abused its discretion in selecting the Subject Property.

3.4. Excessive Taking / Estate Too Broad

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

3.5. Procedural / Notice / Deposit Defects

☐ The proceedings are defective for one or more of the following:

• ☐ Defective or insufficient property description (10 Del. C. § 6105(b))
• ☐ Failure to join or properly serve necessary parties in interest (§ 6105(c); § 6106)
• ☐ The required pre-acquisition written notice of the public use was not given before correspondence stating the property is subject to eminent domain (29 Del. C. § 9501A(e); § 9505(15))
• ☐ The § 6110 notice of intention to take possession or the deposit is defective
• ☐ The ex parte order of possession was improperly entered or exceeds the property or interest the Condemnor may take
• ☐ Other: [________________________________]

3.6. Inadequacy of the Deposit / Estimated Compensation

☐ The amount deposited ($[____________]) is grossly inadequate, does not reflect just compensation, and was not based on a sound appraisal. (Addressed by motion in Section 5 below — 10 Del. C. § 6110(b).)

3.7. Defective Offer / Pre-Filing Negotiation

☐ The Condemnor failed to comply with the pre-acquisition requirements of 29 Del. C. ch. 95 (including § 9505), failed to make the required good-faith written offer of just compensation, and/or failed to negotiate in good faith (see also 42 U.S.C. § 4651).

3.8. Constitutional Violations

☐ The taking violates Del. Const. art. I, § 8 and the Fifth and Fourteenth Amendments to the United States Constitution.

3.9. Reservation

☐ Owner reserves the right to assert additional objections and defenses that discovery may reveal.

4. MOTION TO VACATE OR LIMIT THE § 6110 EX PARTE ORDER OF POSSESSION

4.1. Owner moves to vacate, modify, or limit the ex parte order of possession entered (or sought) under 10 Del. C. § 6110(a). Because that order may issue ex parte and without notice, Owner had no opportunity to be heard before its entry and is entitled to seek relief upon a proper showing.

4.2. Grounds for vacating or limiting possession:

• ☐ The Condemnor lacks the right to take (see Section 3);
• ☐ The deposit does not reflect the estimated just compensation and/or is not appraisal-supported (see Section 5);
• ☐ The order grants possession of more property, or a broader estate, than the Condemnor may lawfully take;
• ☐ The possession date and terms cause Owner undue hardship and should be deferred or conditioned: [________________________________].

4.3. Owner requests that the Court vacate or limit the order, defer the possession date, and/or condition possession on an increased deposit and on resolution of the right-to-take objections.

5. MOTION TO INCREASE THE DEPOSIT AND TO WITHDRAW WITHOUT PREJUDICE

5.1. Owner moves for an order increasing the deposit to the probable amount of just compensation. In support, Owner submits:

5.2. Because the deposit of $[____________] is below the probable amount of just compensation, the Court should order the deposit increased to $[____________].

5.3. Withdrawal without prejudice (10 Del. C. § 6110(b)). Under § 6110(b), on application of a party in interest the Court may order the deposited money, or any part, paid out on account of just compensation, and such payment shall not jeopardize any party's right to prove just compensation in a greater or lesser amount. Owner:

• ☐ applies to withdraw all or part of the deposit on account of just compensation under § 6110(b), expressly preserving the right to prove a greater amount; AND/OR
• ☐ defers withdrawal pending resolution of the right-to-take objections.

5.4. Owner acknowledges that if the compensation finally awarded is less than amounts paid out, the Court will enter judgment against Owner for the overpayment (§ 6110(b)).

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

6.1. If the Court determines the Condemnor has the right to take, Owner demands just compensation, including the fair market value of the part taken, severance damages to the remainder, and interest as provided by law, with title vesting only on payment of the final award (10 Del. C. § 6110(c)).

6.2. Owner reserves all statutory rights under 29 Del. C. ch. 95, including reimbursement of recording fees, transfer taxes, mortgage prepayment penalties, and relocation assistance, and all costs and expenses allowed by law.

7. DEMAND FOR HEARING AND JURY

7.1. ☐ Owner requests an evidentiary hearing on the objections to the right to take (including the § 9501A(d) / § 6105(e) public-use hearing where applicable) and on the motions to vacate possession and increase the deposit, before possession is effectuated.

7.2. ☐ Owner demands trial by jury on the issue of just compensation as provided by the Delaware Constitution and 10 Del. C. ch. 61. (The right to take and public use are decided by the court.)

8. PRAYER FOR RELIEF

WHEREFORE, Owner respectfully requests that the Court:

1. ☐ Sustain Owner's objections and dismiss or stay the proceeding for lack of authority, public use, or necessity, or for excessive taking or procedural/deposit defects;

2. ☐ Vacate, modify, or limit the ex parte order of possession under 10 Del. C. § 6110, or defer the possession date;

3. ☐ Order the deposit increased to $[____________] to reflect the probable amount of just compensation;

4. ☐ Permit Owner to withdraw the deposit on account of just compensation under § 6110(b) without prejudice to the right to prove a greater amount;

5. ☐ Set the matter for an evidentiary hearing, including the § 9501A(d) public-use hearing where applicable, and empanel a jury on compensation;

6. ☐ Award Owner costs and statutory reimbursements as allowed by law; and

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

9. VERIFICATION

STATE OF DELAWARE

COUNTY OF [________________________________]

I, [OWNER NAME], being duly sworn, state that I am the Defendant/Owner (or an authorized representative) in this action; that I have read the foregoing Objection and Motions; and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

Signature: [________________________________]

Printed Name: [________________________________]

Sworn to and subscribed before me this [____] day of [________________________________], 20[____].

Notary Public: [________________________________]

My Commission Expires: [__/__/____]

10. SIGNATURE AND SERVICE

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Delaware Bar ID No. [________]

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

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER] | Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing OBJECTION TO THE TAKING; MOTION TO VACATE OR LIMIT THE EX PARTE ORDER OF POSSESSION; AND MOTION TO INCREASE THE DEPOSIT was served on counsel for the Condemnor by the method indicated:

☐ File & ServeXpress / electronic service (Superior Court e-filing)
☐ U.S. Mail, postage prepaid
☐ Hand delivery
☐ Other: [________________________________]

Counsel for Condemnor: [________________________________]

[________________________________]

(Signature) [________________________________]

12. DELAWARE PRACTICE NOTES

• No "declaration of taking." Delaware obtains prejudgment possession under 10 Del. C. § 6110: the condemnor files a notice of intention to take possession and deposits its estimate of just compensation, and the Superior Court may enter an order of possession ex parte and without notice. Title vests only on payment of the final award (§ 6110(c)), not on the deposit. This template is the Delaware analogue to an objection to a declaration of taking.
• Exclusive jurisdiction. The Superior Court has exclusive jurisdiction of all condemnation proceedings (§ 6102); the Superior Court Civil Rules govern except as ch. 61 provides (§ 6103).
• Right-to-take vehicle. Objections to the right to take are raised by answer (§ 6107). Confirm the answer date from the summons.
• Public use / clear-and-convincing. 29 Del. C. § 9501A narrows "public use" and, where the property will be owned, occupied, or developed by a private party, requires the condemnor to prove public use by clear and convincing evidence (§ 9501A(d)); § 6105(e) requires the court to schedule a hearing for that burden. Carve-outs: § 9501A does not apply to DelDOT transportation acquisitions (certified under Titles 2, 9, 14, 17, 29) or DNREC/tax-ditch acquisitions under Title 7.
• Deposit increase and withdrawal. Move to increase the deposit and, under § 6110(b), apply to withdraw on account of compensation without jeopardizing the right to prove a greater amount. Unlike California and Hawaii, Delaware's statute does not declare withdrawal an abandonment of defenses — but if the final award is less than amounts withdrawn, the owner owes the overpayment (§ 6110(b)).
• FLAG — unsettled: Whether withdrawing the § 6110(b) deposit prejudices a pending right-to-take challenge is not clearly settled by Delaware case law; confirm before advising the client to withdraw while objections to the taking are pending. Confirm whether the project falls within the DelDOT/DNREC § 9501A carve-outs.

13. SOURCES AND REFERENCES

• Del. Const. art. I, § 8
• 10 Del. C. ch. 61 (Condemnation) — https://delcode.delaware.gov/title10/c061/index.html
• 10 Del. C. § 6102 (Superior Court exclusive jurisdiction)
• 10 Del. C. § 6105 (complaint; public-use statement; § 9501A hearing)
• 10 Del. C. § 6107 (answer)
• 10 Del. C. § 6110 (entry into possession; deposit; withdrawal without jeopardy; title vests on payment) — https://codes.findlaw.com/de/title-10-courts-and-judicial-procedure/de-code-sect-10-6110/
• 29 Del. C. § 9501A (public use; clear-and-convincing burden; DelDOT/DNREC carve-outs) — https://delcode.delaware.gov/title29/c095/index.html
• 29 Del. C. ch. 95 (Real Property Acquisition; § 9505; relocation)
• U.S. Const. amends. V, XIV
• 42 U.S.C. § 4601 et seq. (Uniform Relocation Act)

Disclaimer: This template is for informational purposes only and is not legal advice. Delaware has no federal-style "declaration of taking"; prejudgment possession is obtained by a § 6110 notice of intention and deposit, and the order of possession may be entered ex parte. Title vests only on payment of the final award. Deadlines run from the summons under the Superior Court Civil Rules. A Delaware-licensed attorney must review and customize this document, and verify all authorities and deadlines, before filing.