Condemnation of property, even in the best case, can raise a host of legal and procedural issues. When the condemnation involves anything less than the entire fee simple, those issues can intensify. Municipalities, property interest holders and redevelopers are often left to struggle with the problems of identifying all of the lesser interests in property, the statutory procedures for condemning those rights and the impact of private contract rights on the requirements of the Eminent Domain Act.
This spring, the New Jersey Supreme Court issued an opinion in Town of Kearny v. Discount City of Old Bridge , 205 N.J. 386 (2011), which simultaneously refined and further complicated the process for condemning a leasehold interest. Although the Court made it clear that a condemning authority may condemn a leasehold interest separate and apart from a fee-simple interest, the decision raised questions about the interpretation of typical condemnation provisions that appear in many existing leases.
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