§ 32-24-4-4 — Application; payments; election of method; sale of interest in servient estate; statement in offer; acceptance of offer

Indiana § 32-24-4-4

• Jurisdiction: Indiana
• Title 32: PROPERTY
• Art. 24: EMINENT DOMAIN
• Ch. 4: Procedures for Utilities and Other Corporations

Text

(a) This section applies to a public utility that
appropriates by condemnation procedures an easement for right-of-way
purposes on land zoned or used for agricultural purposes.
(b) If a public utility makes a uniform easement acquisition offer
under IC 32-24-1-5 or a settlement offer under IC 32-24-1-12 in excess
of five thousand dollars ($5,000), the owner of the land may elect to
accept as compensation either a lump sum payment or annual payments
for a period not to exceed twenty (20) years.
(c) The landowner must elect either the lump sum payment or the
annual payment method at the time the landowner:
(1) accepts the public utility's offer under IC 32-24-1-5 or IC 32-24-1-12 to purchase an easement;
(2) accepts the appraisers' award; or
(3) is awarded damages by a judgment in a proceeding under this
article.
The grant of easement or judgment, whichever is applicable, must state
the method of payment the landowner has elected to receive.
(d) If the land is owned by more than one (1) person, the election to
receive annual payments must be unanimous among all record owners
to be binding upon the public utility.
(e) Selection of the lump sum method of payment irrevocably binds
the landowner and the landowner's successors in interest.
(f) The annual amount payable must be equal to the lump sum
payment that would have otherwise been made by the utility divided by
the number of years the landowner elects to receive the annual
payments plus interest at a rate agreed upon by the public utility and
the landowner on the balance remaining at the end of each year. The
public utility shall make the annual payment as close as practicable to
the date of the landowner's acceptance of the public utility's offer or the
date of the judgment granting the utility the easement. If the public
utility and the landowner are unable to agree upon the interest rate, the
interest rate shall be the average annual effective interest rate for all
new Federal Land Bank Loans, computed on the basis of the twelve
(12) month period immediately preceding the date of settlement.
(g) A landowner who withdraws the appraisers' award under IC 32-24-1-11 may receive only a lump sum payment from the clerk at
that time. If the landowner is later awarded a judgment for damages
that exceeds the amount of the appraisers' award, the landowner may
elect either method of compensation only to the extent that the damages
exceed the appraisers' award remaining to be paid by the public utility
as a result of the judgment.
(h) A landowner who elects the annual payment method may
terminate the election by giving notarized written notice to the public
utility at least ninety (90) days before the annual date of payment. The
public utility may prescribe reasonable forms for the notice and may
require that these forms be used for the notice to be effective. In the
event the landowner terminates this election, the public utility shall pay
the landowner in a single payment the difference between the lump
sum and the total of all annual payments previously paid by the public
utility. Upon the landowner's receipt of this payment, the public utility's
payment obligations cease.
(i) If a landowner sells the landowner's entire interest in the servient
estate, the landowner shall give the public utility prompt notarized
written notice of the sale, together with a copy of the deed specifying
the name and address of the landowner's successor in interest. If the
public utility receives the notice less than ninety (90) days before the
date of an annual payment, the public utility may make this annual
payment to the landowner but must make all successive payments to
the landowner's successors and assigns.
(j) If a landowner sells less than the landowner's entire interest in
the servient estate, the public utility may continue to make the annual
payments to the landowner.
(k) A public utility shall make annual payments to the landowner
only for the time the servient estate continues to be zoned or used for
agricultural purposes. If the servient estate is no longer zoned or used
for agricultural purposes, the public utility shall pay to the landowner
the difference between the lump sum and the total of all annual
payments previously paid by the public utility. Upon the landowner's
receipt of this payment, the public utility's payment obligations cease.
(l) This section is binding upon the heirs, successors, and assigns of
the landowner and the public utility.
(m) Every offer of a public utility under IC 32-24-1-5 and IC 32-24-1-12 must include the following statement in at least ten (10)
point boldface type capital letters:
"IF THIS OFFER IS OVER FIVE THOUSAND DOLLARS
($5,000), YOU MAY ELECT UNDER IC 32-24-4-4 TO
ACCEPT PAYMENT IN A LUMP SUM PAYMENT OR IN
ANNUAL PAYMENTS FOR A PERIOD NOT TO EXCEED
TWENTY (20) YEARS WITH INTEREST. IF YOU ELECT
ANNUAL PAYMENTS, THEN POSSESSION WILL BE
REQUIRED THIRTY (30) DAYS AFTER YOU HAVE
RECEIVED YOUR FIRST ANNUAL PAYMENT.".
(n) Every offer of a public utility under IC 32-24-1-5 and IC 32-24-1-12 must also include a form to be used by the landowner to
accept the offer that substantially contains the following:
ACCEPTANCE OF OFFER
I (We),_____________,_______________,_________________,
landowner(s) of the above described property or interest in property
hereby accept the offer of $_____ made by _________________
(condemnor) on this ___ day of ___________, 20___. Please check one
of the following if the offer is in excess of five thousand dollars
($5,000):
( ) I (We) elect to accept payment in a lump sum.
( ) I (We) elect to accept payment in annual payments for a period
of ____ years with interest as determined under IC 32-24-4-4.
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
Subscribed and sworn to before me this ___ day of ____________,
20___. My Commission Expires: ____________
[Pre-2002 Recodification Citation: 32-11-3-4.]

Legislative History

As added by P.L.2-2002, SEC.9.