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AGO 1968 No. 18 - May 13, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CONDEMNATION - COSTS - EVALUATION OF ATTORNEYS' FEES.

Under the provisions of § 1, chapter 137, Laws of 1967, Ex. Sess.  (RCW 8.25.020), persons having an interest in real property being acquired by eminent domain are entitled to reimbursement for actual and reasonable expenditures, not in excess of $200, incurred in the evaluation of the condemnor's offer, including expenditures made in payment of reasonable attorneys' fees in the process of evaluating the condemnor's offer.

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                                                                   May 13, 1968

Honorable Wesley C. Uhlman
State Senator, 32nd District
2315 North 40th
Seattle, Washington 98103

                                                                                                                 Cite as:  AGO 1968 No. 18

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office concerning a question which we paraphrase as follows:

            Do the provisions of § 1, chapter 137, Laws of 1967, Ex. Sess. (RCW 8.25.020), relating to the reimbursement to persons having an interest in real property being acquired by eminent domain for expenditures actually and reasonably incurred in the evaluation of a condemnor's offer, include expenditures in payment of reasonable attorneys' fees incurred in the process of evaluating the condemnor's offer?

            We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Section 1, chapter 137, Laws of 1967, Ex. Sess.,1/ provides as follows:

             [[Orig. Op. Page 2]]

            "There shall be paid by the condemnor in respect of each parcel of real property acquired by eminent domain or by consent under threat thereof, in addition to the fair market value of the property, a sum equal to the various expenditures actually and reasonably incurred by those with an interest or interests in said parcel in the process of evaluating the condemnor's offer to buy the same, but not to exceed a total of two hundred dollars.  In the case of multiple interests in a parcel, the division of such sum shall be determined by the court or by agreement of the parties."

            It is to be noted that under the above section the condemnee is to be reimbursed for "various expenditures" actually incurred in evaluating the condemnor's offer.  The term "expenditure" is defined in 35 C.J.S. Expenditure, page 233, as follows:

            "In its broader sense the word 'expenditure' is any laying out or disbursement of money; and the term is defined as meaning the act of expending; disbursement, expense, money expended, a laying out, as of money, or the spending of money; also, sometimes, payment; an outlay of money. . . ."

            The term "various expenditures" is broad, particularly when coupled with the other words "actually and reasonably incurred."  The legislature envisioned condemnees encountering multiple expenditures in the evaluation of the condemnor's offer to buy their property.  The statute clearly and without ambiguity confines the "various expenditures" to those "actually and reasonably incurred" in the process of evaluating the condemnor's offer.

            It has been held that the plural "expenditures" may be synonymous with "expenses."  Natural Gas Pipe Line Co. v. State Commission of Revenue and Taxation, 155 Kan. 416, 125 P.2d 397, 140 A.L.R. 1341 (1942).  In the case ofIn re Commissioners of Palisades I. Park, 144 N.Y.S. 782, 83 Misc. Rep. 186 (1913) (affirmed without opinion 164 App.Div. 957, 149 N.Y.S. 1072), a condemnation action, the court held that the term "expenses" was "broad enough to include the reimbursement of the owners and lessees for their expenses actually and necessarily incurred for counsel and expert witnesses."

             [[Orig. Op. Page 3]]

            Although the foregoing case dealt with a special condemnation statute which provided for the court taxing and allowing of costs, fees and expenses, we think the same reasoning and conclusion can be applied to the statute here in question insofar as the attorneys' fees are incurred in evaluation of the condemnor's offer.

            In the process of evaluating such an offer, the costs for which reimbursement may be made to a property owner may include consultation fees with an engineer, attorney or an expert real estate appraiser with regard to real estate valuation, engineering features, what the legal basis for compensation should be or for any other purpose related to evaluating the condemnor's offer.

            If, after making various expenditures for which those with an interest or interests in the parcel of real property are entitled to be reimbursed to the maximum of $200, a decision is reached not to accept such offer and a trial be held, the provision of § 3, chapter 137, Laws of 1967, Ex. Sess., would apply authorizing attorneys' fees under certain circumstances.2/

             [[Orig. Op. Page 4]]

            However, the fact that a court could award a condemnee reasonable attorneys' fees under this section does not conflict with our conclusion that the same condemnee might also be entitled to reimbursement for attorneys' fees incurred in the evaluation of the condemnor's offer.  In the allowance of reasonable attorneys' fees under § 3, any previous allowance under § 1 should be taken into consideration so as to preclude a double recovery as to that portion of the attorneys' fees incurred to assist the condemnee in the evaluation of the condemnor's offer.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EDWARD W. HUNEKE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Amending § 2, chapter 125, Laws of 1965, Ex. Sess., and RCW 8.25.020.

2/This section reads as follows:

            "If a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned and if the condemnee has offered to stipulate to an order of immediate possession of the property being condemned, the court may award the condemnee reasonable attorney's fees and reasonable expert witness fees actually incurred in the event of any of the following:

            "(1) If condemnor fails to make any written offer in settlement to condemnee at least thirty court days prior to commencement of said trial; or

            "(2) If the judgment awarded as a result of the trial exceeds by ten percent or more the highest written offer in settlement submitted to those condemnees appearing in the action by condemnor at least thirty days prior to commencement of said trial; or

            "(3) If, in the opinion of the trial court, condemnor has shown bad faith in its dealings with condemnee relative to the property condemned.

            "In no event may any offer in settlement be referred to or used during the trial for any purpose in determining the amount of compensation to be paid for the property."

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