25.1-243 - Withdrawal pendente lite of money paid into court.
§ 25.1-243. Withdrawal pendente lite of money paid into court.
A. At any time after payment into court of the sum ascertained in the reportof the award of just compensation, notwithstanding the fact that anothertrial of the issue of just compensation has been ordered or an appeal hasbeen taken from a final order upon the report as provided in subsection B of§ 25.1-239, a party whose property or interest therein is to be taken ordamaged may apply to the court, in the manner provided in this section, forthe withdrawal pendente lite of all, or any portion of his pro rata share, ofthe amount deposited for his interest in the property to be taken or damaged,together with his pro rata share of any interest accrued thereon.
B. If such application requests withdrawal of an amount in excess of 50percent of such owner's pro rata share of the amount deposited, exclusive ofinterest, the court may require the applicant, before withdrawing any of suchexcess, to give or file a bond with the court for the return of the amountwithdrawn that exceeds the amount to which the owner is entitled as finallydetermined in the condemnation proceeding, together with interest from thedate of the withdrawal of the amount in excess of 50 percent of such owner'spro rata share of such amount deposited. Such bond shall be with suretyapproved by the court or clerk, conditioned as required by law to the effectthat they are bound to the petitioner in such amount as fixed by the court,but not to exceed double the amount of such excess. Interest accruing priorto July 1, 1970, shall be paid at the rate of five percent annually; interestaccruing thereafter and prior to July 1, 1981, shall be paid at the rate ofsix percent annually; interest accruing thereafter and prior to July 1, 2003,shall be paid at the rate of eight percent annually; and interest accruingthereafter shall be paid at the general account's primary liquidity portfoliorate, compiled by the Department of the Treasury.
C. Such application shall be verified and shall set forth the owner'sinterest in the property to be taken or damaged and request withdrawal of astated amount. A copy of such application for withdrawal shall be served uponthe petitioner or its counsel of record. No order permitting such withdrawalshall be entered until at least 21 days after service of such applicationupon the petitioner without its consent. Within such 21-day period thepetitioner may object to such withdrawal by filing written objections theretowith the court on the grounds that the amount of, or the sureties upon theproposed bond are insufficient or that other persons are known or believed tohave interests in such property. A copy of any such objections shall beserved upon the applicant and such other persons as have appeared oranswered, or their attorneys of record.
D. If any person appears and objects to the proposed withdrawal, or if thepetitioner so requests, the court shall determine the amount to be withdrawn,if any, and the persons entitled thereto. Upon such determination, no otherperson so served shall have any claim against the petitioner to the extent ofthe amount so withdrawn. The court may follow the procedure prescribed in §25.1-241 for the determination of any controversy among any claimants to thefunds or to the ownership of the property subject to the condemnation, andmay tax the costs thereof as therein provided.
E. If the award that is confirmed finally is for a lesser amount than theamount paid into court, the petitioner shall recover the amount of suchexcess and, if any person has been paid a greater sum than that to which heis entitled, judgment shall be entered for the petitioner against such personfor the amount of such excess and any interest thereon.
F. The amount of the petitioner's deposit under § 25.1-224 or § 25.1-237 andthe amount of such deposit withdrawn by any party in accordance with theprovisions of this section shall not be given in evidence or referred to inthe trial of the issue of just compensation or be considered by the court orupon appeal in determining whether the award is inadequate or excessive, norlimit the rights of any party to appeal from any decision therein.
(1962, c. 426, § 25-46.30; 1970, c. 308; 1979, c. 494; 1981, c. 476; 2003, c.940.)