Season 3, Episode 5 | Title Nerds

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Riker Danzig partners Stuart Lederman and Rudy Randazzo were our special guests for the 5th episode of Season 3, moderated by our co-hosts Michael O’Donnell and Bethany Abele. Stuart and Rudy practice in Riker’s Governmental Affairs and Litigation practices with extensive experience in Eminent Domain and Condemnation Law as well as Construction Law, regularly navigating issues of title, and frequently interacting with our title insurance attorneys at the intersection of title law and real property condemnations. Stuart and Rudy represent both governmental entities who are acquiring properties, and also property owners whose properties are targeted to be taken for particular government projects.

What You Will Hear on This Episode:

What are the key stages of the condemnation process?
- Is it important for property owners to attend early meetings on government projects that may impact their properties?
- What are the public purposes for which a property may be taken?
- To whom may the government delegate the power of condemnation?
- Does the governmental entity have the right to conduct a property title search in advance of a taking?
- How is fair market value determined? Is lost business taken into consideration?
- What are bona fide negotiations and when can a condemnation complaint be filed?
Whose interests are important in properties being taken?
What is a “quick take”? Can a property be taken and put to public use even while litigation over rights and fair market value is pending?
What are critical defenses to a real property taking?
- How do you prove a pretextual purpose (improper motives, bad faith or abuse of power)? (Essex Fells v. Kessler Institute and Atlantic City v. Trump Casino)
- What constitutes failure to negotiate, and can this prevent the taking?
What is the role of condemnation commissioners, and who has the burden of presenting evidence to establish value at trial?
What are the implications if it is not a “full” taking?
Is the government required to pay for another party’s environmental damage to the property?
What are the special implications for lien holders of a property being taken?
Are judgments final, and can the property owner appeal?
What is an inverse taking?

In addition, Stuart and Rudy shared some interesting anecdotes from their wide-ranging experience representing government agencies tasked with taking property, including allowing a “jury view” of the condemned property during a trial on the taking, and another case where the property owner resisted the taking by hiring private militia to face down the bulldozers, creating a standoff between the armed militia and the local National Guard brought in by the governmental entity. They also touched on their related Construction Litigation practice and the dovetailing of the two practices, particularly when temporary easements are recorded on taken properties for large construction projects, and construction delays ensue with adverse effects.

Next, Bethany interviewed our newest associate in the Title Insurance practice, Shelley Wu, who discussed Moldovan v. Long, No. 1 CA-CV 23-0470, 2024 Ariz. App., Unpub. LEXIS 460 (Ct. App. May 30, 2024). In this case in the Arizona Court of Appeals, the court affirmed a summary judgment in favor of a settlement/escrow agent, finding no breach of duty where the agent sufficiently disclosed to the seller the existence of a potentially fraudulent deed but did not further investigate or determine its validity.

Bethany and Shelley discussed many of the noteworthy statements in the appeals court’s ruling that sheds light on the responsibilities of disclosing additional deeds, and concerning negligent misrepresentation claims.

Key questions addressed in Moldovan v. Long:

What are the responsibilities of escrow agents and where are those responsibilities outlined?
In particular, what are the duties of an agent when a suspicious or potentially fraudulent deed appears in the chain of title?