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If you are ever in Boston, it is worth a few minutes of your time to pay a visit to the John Adams Courthouse. The interior architecture is pretty neat, it is full of history (Oliver Wendell Holmes was here), and it is one of the few places in the country where the state’s supreme court is actually below the intermediate appellate court. 

On that last one, we’re being very technical and a bit cheeky: yes, the Massachusetts Supreme Judicial Court is indeed the “supreme” court jurisdiction-wise, but it is located on the second floor, while the Appeals Court is on the third.

Our story today takes place in the SJC (courtroom depicted above).

In Abuzahra v. City of Cambridge, No. SJC-12920 (Feb. 17, 2021), the court was faced with what to do in a quick take: can an owner who accepts the pro tanto payment (aka the deposit) also challenge the validity of the taking. Under many (most?) jurisdictions’ quick take procedures, the statute puts a price tag on the owner’s withdrawal of the deposit: doing so abandons all defenses to the condemnation except arguments for more compensation. In short, if you take the money, you cannot challenge the power to take.

But Massachusetts’ quick take statute doesn’t say that. Instead, it only says that after the order of taking is recorded and title to the property passes to the condemnor (with the corresponding right to compensation vesting in the owner), that within 60 days, the condemnor must offer pro tanto damages which become “immediately available” to the owner, if desired. If the owner accepts the pro tanto payment, she may choose to claim a larger sum:

“If such person elects to accept the offer as a pro tanto payment, such election shall be without prejudice to or waiver or surrender of any right to claim a larger sum by proceeding before an appropriate tribunal.” Furthermore, “[a]fter a pro tanto payment has been made or after an offer of payment has been made in writing as required by this section and not accepted, no interest shall be recovered except upon such amount of damages as shall upon final adjudication be in excess of said payment or in excess of the written offer of payment as herein described.”

Slip op. at 6. Compare Massachusetts’ statute quoted above, with, for example, Hawaii’s statute, which provides that “payment to any party as aforesaid shall be held to constitute an abandonment by the party of all defenses interposed by the party, excepting the party’s claim for greater compensation or damages.” The Mass stat is missing similar language.

The question in Abuzahra was whether the missing language leaves an owner with the choice of challenging the taking even after it takes the pro tanto payment. The owner believed the lack of forfeiture or abandonment language meant that he could both take the quick take deposit and challenge the validity of the take. The judge agreed with the owner, and after the city appealed to the appeals court (third floor), the SJC transferred the case to the second floor. 

The case turned on statutory interpretation, and the idea that quick take is in derogation of the common law, along with the “vibe” that  “eminent domain is an exercise of one of the highest powers of government.” Slip op. at 8. Quick takes are even more onerous:

Not only does the taking authority have the power to impose its will on the property owner through eminent domain, but the taking itself is swift and occurs automatically outside of judicial processes. Given this dynamic, the statutorily mandated pro tanto payment ensures that property owners receive some initial recourse following the deprivation of their property, and also incentivizes taking authorities to exercise their significant eminent domain powers with discretion.

Slip op. at 9. The court noted that “[a]lthough prompt payment of the pro tanto amount is clearly required under §§ 8A and 7B, the effect of challenging the taking itself is not addressed in either provision.” Slip op. at 10. The court dug into the statute’s legislative history, and concluded that the prompt payment requirement was to both to stop interest from running and to allow the property owner to get some payment – even a partial payment – while the issue of full compensation was adjudicated. Slip op. at 11-12. Eminent domain “impose sudden and heavy financial burdens on property owners.” Slip op. at 12.

Furthermore, we must consider not just this particular property owner, who does not live on the property and appears to have the means to pursue this litigation without the benefit of the pro tanto amount. We must also consider the person of limited means who was living in his or her family home before it was taken, and who is determined to remain and contest the taking. Without the pro tanto amount, such a person may be forced to give up the family home, as without this payment, the person would have neither a place to live nor, perhaps, money to litigate.

Slip op. at 13-14.

A property owner’s challenge to the taking “does not abate” these hardships, “and the burden on the property owner in these instances is perhaps even greater than on the property owner who accepts the pro tanto payment.” Slip op. at 13. And that old saw of statutory interpretation applies: if the lege had intended that owners are deemed to have abandoned challenges to the taking when they accept the deposit, the lege would have included that sort of language in the statute. (see, e.g., Cal. Civ. Proc. Code § 1255.260 (deeming acceptance of the deposit a “waiver by operation of law of all claims and defenses … except a claim for greater compensation”). But the Mass legislature didn’t:

In sum, given the enormous power that the quick take statute provides, which immediately transfers ownership of the property from the land owner to the taking authority independent of judicial processes, the clear requirement of a pro tanto payment, the absence of any statutory provision waiving pro tanto payments when the taking itself is challenged, and the requirement to strictly construe G. L. c. 79 to preserve individual property rights, we conclude that a property owner may accept the pro tanto amount and simultaneously challenge the lawfulness of the taking.

Slip op. at 16.

So have at it, Massachusetts property owners: you may accept the pro tanto payment, and challenge the taking itself.

One final note. The court’s realization that the owner may use the deposit/pro tanto payment in order to fund a challenge to the taking (slip op. at 13-14) highlights one of the gross inequities in eminent domain cases in jurisdictions where recovery of attorneys’ fees and costs isn’t possible: often, owners must fund the defense with the money that should be going to compensating them for the loss of their property. In the end, even if they prevail, they still lose because every dollar they spend on lawyers and appraisers is one less dollar that is supposed to make them whole. How is this the “full and perfect equivalent for the property taken,” we ask? 

Abuzahra v. City of Cambridge, No. SJC-12920 (Mass. Feb. 17, 2021)