Eminent Domain Report

The regulations implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Uniform Act or Act) have not been amended since 2005. In 2019, the U.S. Department of Transportation promulgated proposed regulations. After extensive comment, the final rule was passed and circulated on May 3, 2024. It went into effect on June 3, 2024. This article summarizes some of the major changes to the Uniform Act.

Definitional Changes

One of the more significant changes in the rule is that the term "displaced person" now includes persons who are required to move temporarily. 49 CFR § 24.2(a). In addition, the Act now provides that tenants displaced as a result of a voluntary acquisition may be entitled to receive relocation benefits under certain circumstances. Id.

Under previous regulations, occupants of temporary, daily, or emergency shelters were not considered displaced persons. The amended Act continues to provide that in most cases, such persons will not be considered displaced persons for purposes of determining relocation eligibility. However, agencies may determine that a person is displaced due to a variety of factors, including reasonable expectation of a prolonged stay or other circumstances.^[1] 49 CFR § 24.2(a). The Act provides that agencies shall provide advisory assistance to all occupants of such shelters, at the initiation of negotiations, regardless of whether those persons are otherwise entitled to benefits. Id.

Under prior regulations, the agency’s notice of intent to acquire property was necessary to trigger various time frames applicable to relocation assistance. Under the new regulations, the triggering notice can be based on an intent to acquire, rehabilitate, or demolish the real property, even if the agency has no intent to acquire that property in the future.^[2] 49 CFR § 24.2(a).

The definition of utility has been expanded to include producing, transporting, or distributing crude products, wastewater or stormwater not connected with highway drainage and specifically includes fire or police signal systems and street lighting systems. 49 CFR § 24.2(a).

The Act specifically excludes waiver valuations from the definition of “appraisal.” 49 CFR § 24.2(a). It provides that “waiver valuations are not appraisals as defined by the Uniform Act in this part.” Id. Additional changes to waiver valuations are discussed in more detail, below.

Some general changes include various updates to accommodate changes in technology and business practices, such as service of certain notices by electronic means, electronic signatures, and the use of services other than the U.S. Postal Service to deliver notices. 49 CFR § 24.5. The rules specify a number of safeguards and procedures that must be followed in order to serve notices by electronic means. 49 CFR § 24.5(e).

Adjustment of Valuation Limits and Relocation Benefits

A new provision, 49 CFR § 24.11 allows the agency to adjust certain valuation limits and maximum relocation benefits if the head of the lead agency determines the cost-of-living, inflation or other factors indicates that the limits and payments provided should be adjusted to meet the policy objectives of the Act. Adjustments are determined by taking the ratio of current year’s CPI-U to the previous year, or base year CPI-U, and applying it to the benefit or waiver limit. 49 CFR § 24.11(b).

Replacement Dwellings

In the prior rule, a person displaced from a dwelling occupied for at least 180 days prior to the initiation of negotiations which would result in the displacement of that person was entitled to a comparable replacement dwelling. The occupancy period in the Act has been reduced to 90 days. 49 CFR § 24.401(a)(1) (homeowner-occupants); 49 CFR § 24.402(a)(1) (tenants and certain others). In addition, the Act adds provisions applicable to persons displaced from or moving into replacement dwellings falling under various government housing programs and subsidies. See 49 CFR § 24.2(a); 49 CFR § 24.205(c)(ii)(f).

The definition of “decent, safe and sanitary” was amended to provide that such dwellings must meet the "most stringent of local housing code, federal agency regulations, or the agency's written regulations or policy." 49 CFR § 24.2(a). The rule also specifically provides that local standards relating to lead paint abatement "must" be honored. Id.

Real Property Acquisition

One global change is that the owner of the property that is being acquired, demolished, or rehabilitated may designate a representative for purposes of receiving notices. 49 CFR § 24.5(d).

Waiver Valuation

For "uncomplicated" valuations, defined generally as acquisitions of vacant strips of land when the anticipated value of the proposed acquisition is estimated at less than $15,000, no appraisal is necessary. 49 CFR § 24.102(c)(2)(ii). This $15,000 limit is an increase from the $10,000 limit on valuation waiver that existed previously. The agency representative making the determination to use the waiver valuation option must understand valuation principles, techniques, and the use of appraisals. Id. The regulations specifically provide that persons preparing or reviewing evaluation waiver are precluded from complying with Standard Rules One, Two, Three, and Four of the Uniform Standards of Professional Appraisal Practice. 49 CFR § 24.102(c)(2)(ii)(A)(1). The Act specifically states that a waiver valuation is not an appraisal, and a review of a valuation waiver is not required. 49 CFR § 24.102(c)(2)(ii)(A)(2).

The federal agency funding the project may approve increasing the $15,000 waiver valuation threshold to a maximum of $35,000, up from the previous limit of $25,000. 49 CFR § 24.102(c)(2)(ii)(C). Waiver valuations up to $50,000 may be approved if the acquiring agency has offered the property owner the option of having an appraisal done. 49 CFR § 24.102(c)(2)(ii)(C), (D), and (E). However, this higher limit comes with a number of reporting requirements which would need to be evaluated in order to determine whether the higher wavier limit was worth the trouble.  Likewise, agencies wishing to negotiate their own acquisitions may do so when the valuation is under $15,000, up from the previous limit of $10,000. 49 CFR § 24.102(n)(3).  Agencies that wish to act as their own negotiators may not use waiver valuations for valuations greater than $15,000 without going through the appraisal and appraisal review process, and then their authority to negotiate is limited to $35,000. Agencies wishing to negotiate their own acquisitions must meet a number of other regulatory requirements. Id. An important caveat is that state laws or regulations may limit an agency’s authority to negotiate on their own behalf.

Relocation

As noted previously, relocation benefits are now available to “permanently or temporarily” displaced persons as defined by the rule. Temporarily displaced persons must be provided with generally applicable notices and relocation advisory services. 49 CFR § 24.202(a)(1); see also 49 CFR § 24.203.

For occupants of a dwelling, at least one comparable dwelling must be made available. 49 CFR § 24.204(a). In the case of a business, if it is shut down due to a project which requires the occupant to vacate the property or denies the occupant physical access to the property, the business will be temporarily relocated and reimbursed for "all reasonable out-of-pocket expenses." 49 CFR § 24.202(a)(3). Alternatively, the agency may determine that the business is permanently displaced and provide relocation benefits as provided under the Act. Id. Temporary relocation includes reasonable and necessary costs of temporarily moving personal property and, in appropriate circumstances, storage. 49 CFR § 24.202(a)(4). A person’s temporary move may not exceed 12 months. 49 CFR § 24.202(a)(5). If a displacement of either a person from their dwelling or a business lasts more than 12 months, that person will be considered permanently displaced. The agency may not deduct temporary relocation assistance benefits previously provided once it is determined that the displaced person or business is entitled to permanent relocation benefits. Id. Temporarily displaced persons are generally entitled to the same notices as permanently displaced persons. See generally 49 CFR § 24.202.

The notice of eligibility requirements continue to be triggered by the notice of intent to acquire. 49 CFR § 24.203(b) and (d). However, in cases where the agency is not acquiring the property, relocation eligibility may also be triggered by the notice of intent to rehabilitate and/or demolish the improvements on the property. Id.

If an agency provides advanced relocation payments, it is now mandatory and specifically required that those advance payments are deducted from the final relocation payments to which a person is otherwise entitled. 49 C.F.R. § 24.207(c)

Self-Moves

The regulations now provide that self-moves will be reimbursed in one of several ways. The first option is through the Fixed Residential Moving Cost Schedule. 49 C.F.R. § 24.301(b)(2)(i). The second is through reimbursement of the actual cost of the move shown by receipts. 49 C.F.R. § 24.301(b)(2)(ii). These costs should not exceed the cost paid to a commercial mover, but they may include costs for moving personal property that requires special handling. Similarly, equipment rental fees should be based on the actual cost of renting the equipment. Id. The third method is through a moving cost estimate prepared by a qualified agency staff person, provided that those costs should not exceed the costs of a commercial move. 49 C.F.R. § 24.301(b)(2)(iii). Finally, the reimbursement can be based on the lower of two bids from a commercial mover. 49 C.F.R. § 24.301(b)(2)(iv).

Personal property from a business, farm, or nonprofit organization may be moved by (1) a commercial move based on the lower of two bids or estimates provided by a commercial mover, (2) a self-move payment based on the lower of two bids prepared by a commercial mover or a qualified agency staff person; supported by receipts and bills for labor and equipment; and/or (3) through a qualified agency staff person’s development of a move cost finding by estimating the cost of a small uncomplicated non-residential personal property move of $5,000 or less with the written consent of the person. 49 C.F.R. § 24.301(d). In the latter case, the estimate may include only the cost of moving personal property and not any required disconnect/reconnect and/or specialty services necessary for activities including crating, lifting, transportation, and setting of the item in place. 49 C.F.R. § 24.301(d)(2)(iii).

An additional benefit of up to $1000 is now available for rental replacement dwelling application fees or credit reports required to lease replacement dwellings. 49 C.F.R. § 24.301(g)(7).

Expenses incurred in searching for a replacement site for a business or farm operation are reimbursable up to $5000, increased from $2500. 49 C.F.R. § 24.301(g)(18)(i).

Reimbursement for moving equipment currently in use is  based on the lesser of (1) the estimated cost to move the item 50 miles and reinstall it,  or (2) the fair market value of the item in place, as is, less the proceeds from the sale.  49 C.F.R. § 24.301(g)(15)(i). If the item is not currently in use, reimbursement is the estimated cost of moving the item 50 miles, as is. 49 C.F.R. § 24.301(g)(15)(ii).

Previously, the fair market value in place of the item, as is, less the proceeds from its sale, was the sole measure of reimbursement. Reimbursable business, farm or on-profit expenses, may now include expenses such as attorneys’ fees incurred in negotiating the purchase of replacement site. 49 C.F.R. § 24.301(g)(18)(i)(F). As an alternative, the funding agency may allow a one-time payment of $1000 for search expenses with minimal or no documentation. 49 C.F.R. § 24.301(g)(18)(ii).

Individuals are not entitled to recover attorneys’ fees incurred as part of a search for replacement dwelling. 49 C.F.R. § 24.301(h)(9). Cosmetic changes, such as new drapes or carpeting, are not eligible for reimbursement. 49 C.F.R. § 24.301(h)(13).

As noted previously, the Rule reduces the period from 180 days to 90 days that a person must occupy property prior to notice in order to be eligible for replacement housing payment. 49 CFR § 24.401(a)(1) (homeowner-occupants); 49 CFR § 24.402(a)(1) (tenants and certain others). The replacement housing payment for a homeowner-occupant who has been in their property for 90 days or more may not exceed $41,200, up from $22,000. 49 CFR § 24.401(b).

Storage of personal property is an approved expense under some circumstances for both permanently and temporarily displaced persons for up to 12 months where storage is a reasonable and necessary moving expense for the displaced person. 49 C.F.R. § 24.302. The determination of reasonableness and necessity must be based on the needs of the displaced person, the nature of the move, and plans for permanent relocation, the time available for the relocation, and whether storage furthers relocation. 49 C.F.R. § 24.302(a). The agency can approve storage for more than 12 months for unusual circumstances as justified, documented, and approved by the agency. 49 CFR § 24.301(g)(4).

Displaced persons are entitled to receive a fixed moving cost payment as an alternative to actual moving expenses. 49 C.F.R. § 24.302. The Fixed Residential Moving Cost Schedule governs the amount of these payments. This schedule is periodically updated and published in the Federal Register. Additionally, the schedule is accessible here. The Fixed Residential Move Cost Schedule provides a one-time payment for a displaced person’s move from its displacement dwelling to its replacement dwelling or storage. The rules clarify that the agency must make clear that this payment, plus approved storage costs if applicable, represent the full reimbursement of their eligibility for moving costs. Id.

For nonresidential moves, the Act adds a provision clarifying that construction costs for a new building at the business replacement site or costs to construct, reconstruct, or rehabilitate an existing building are not allowed expenses. 49 C.F.R. § 24.304(b)(5).

Reverse Mortgages

The rule has entirely new provisions regarding reverse mortgages. 49 C.F.R. § 24.401(e). In general, to be eligible to have a reverse mortgage replaced, the property owner must have obtained the reverse mortgage more than 180 days prior to the initiation of negotiations. Reverse mortgage payments are conditioned on the owner obtaining a similar reverse mortgage on the replacement dwelling. An interest differential is available, if applicable. Id.

Rental Assistance

A tenant or homeowner displaced from a dwelling is entitled to a payment not to exceed $9,570 for rental assistance, up from $5,250. 49 C.F.R. § 24.402(b).^[3] The displaced person must have occupied the displacement dwelling for at least 90 days prior to the initiation of negotiations. 49 C.F.R. § 24.402(a)(1). The method of calculating the payment has not changed. An owner occupant displaced for a mobile home is entitled to replacement housing payment not to exceed $41,200, up from $22,500. 49 C.F.R. § 24.502(a). Likewise, displaced mobile home tenants are entitled to replacement housing payment not to exceed $9,570, up from $5,250. 49 C.F.R. § 24.503.

^[1] Temporary daily or emergency shelter does not generally meet the definition of “dwelling” as used in the Act. It is defined as a facility, primary purpose of which is to provide a temporary overnight shelter and does not allow prolonged or guarantee occupancy. A shelter typically requires the occupants to remove their personal property and themselves from the premises on a daily basis.

^[2] Tenants who are displaced as a result of voluntary acquisitions are only eligible for benefits if there is a binding agreement between the property owner and the agency to acquire the property. Binding agreements do not include options to purchase or conditional purchase and sale agreements, except under special circumstances.

^[3] 90-day homeowner occupants who are eligible for a replacement housing payment but elect rent a replacement dwelling may receive a rental assistance payment, which may exceed the $9,570 limit. 49 C.F.R. § 24.401(g).