Eminent Domain in Massachusetts: The Property Owner’s Guide

Massachusetts gives property owners the longest runway in the country, three full years to bring a damages case, and pairs it with a payment you can accept without giving up a thing. Both are easy to misunderstand and expensive to waste.

The law that governs takings in Massachusetts

Massachusetts eminent domain law is codified at General Laws chapter 79. The taking is accomplished by an order of taking adopted by the appropriate board of officers and recorded in the registry of deeds. Section 6 provides that when a taking is made on behalf of a body politic or corporate other than a corporation described in section 7, the board of officers adopting the order of taking shall at that time award the damages sustained by every person in their property by reason of the taking.

Section 8A governs the offer that follows. Section 14 provides the petition for assessment of damages, which is the vehicle for having a jury determine the fair market value of the property taken. Massachusetts has long required that a taking be for a public purpose, a requirement that predates and is independent of Kelo, and the Commonwealth did not enact the categorical post-Kelo statutes adopted in many other states.

Who can take property in Massachusetts

The Massachusetts Department of Transportation, cities and towns acting through their select boards or city councils, the Massachusetts Bay Transportation Authority, water and sewer commissions, regional school districts, housing and redevelopment authorities, and utilities including gas and electric companies hold condemnation authority. Because the taking is effected by a recorded order rather than a court judgment, Massachusetts owners often learn of a taking from a notice in the mail rather than from a summons.

The condemnation process in Massachusetts, step by step

The board of officers adopts an order of taking, awards damages, and records the order in the registry of deeds. Title vests on recording. Under section 8A, prior to the expiration of sixty days after the recording of the order of taking, the board must offer in writing to every person entitled to damages either a reasonable settlement amount or a payment pro tanto.

If you elect to accept the offer as a pro tanto payment, that election is expressly without prejudice to, and works no waiver or surrender of, any right to claim a larger sum before an appropriate tribunal. The larger claim is then brought as a petition for assessment of damages under section 14, heard in Superior Court, where a jury determines the fair market value of the property taken.

Possession and deposits

Because title vests on recording of the order of taking, Massachusetts does not have a separate quick take proceeding. The project may proceed immediately, and the entire remaining dispute is about money.

The pro tanto payment is the mechanism that lets you take money now without compromising your claim. That distinction is the single most important practical point in Massachusetts practice: accepting an award as full and final just compensation ends your case, while accepting the same money as a payment pro tanto does not. The paperwork should be reviewed before you endorse anything, because the difference is in how the acceptance is characterized.

What just compensation includes in Massachusetts

The measure of damages in Massachusetts is the fair market value of the property at the time of the taking, defined as the highest price a hypothetical willing buyer would pay a hypothetical willing seller in an assumed free and open market. In a partial taking, damages to the remainder are added, offset by any special benefits.

Along Massachusetts’s dense and long-developed corridors, remainder damage frequently exceeds the value of the land taken. Loss of frontage or access, parking reduced below a zoning requirement, a setback that renders an existing structure nonconforming, and grade and drainage changes all show up in the after value. Nonconformity is a particularly Massachusetts problem given how much of the building stock predates current zoning.

Massachusetts does not provide a broad statutory right to recover lost business profits as a separate item of condemnation damages. Business impacts are generally established through their effect on real property value, which makes it important that your appraiser understands the operation before a report is issued.

Relocation assistance and moving costs

Federally assisted projects trigger the Uniform Relocation Assistance and Real Property Acquisition Policies Act, and Massachusetts has parallel state relocation assistance requirements administered under the Commonwealth’s regulations. Relocation benefits cover moving costs, business reestablishment expenses, and replacement housing payments. They are separate from the damages owed for the property, and accepting them does not affect your section 14 petition.

Deadlines that protect your rights in Massachusetts

Three years from the date title vests in the taking authority is the deadline to file a petition for assessment of damages under section 14. It is the most generous limitations period in condemnation practice anywhere in the country, and it lulls owners into waiting.

Waiting is the mistake. Evidence of the property’s condition and the market as of the taking date degrades, the site is altered by construction, and appraisers have less to work with the longer you delay. The 60-day offer window under section 8A is the other date to track, because it is when the taking authority must put a written offer of settlement or pro tanto payment in front of you and when the decision about how to characterize any acceptance arises.

How to fight a taking in Massachusetts

Massachusetts requires that a taking be for a public purpose, a requirement well established long before Kelo, and the Commonwealth did not follow other states in enacting a categorical statutory ban on economic development takings. In practice that means most Massachusetts disputes are about damages rather than about the validity of the taking.

Where a challenge to the taking is warranted, it has to be raised promptly given that title vests on recording. The Supreme Judicial Court has continued to develop the rights of property owners in eminent domain matters, so the current state of the case law is worth checking with counsel rather than assuming a challenge is futile. Scope and the terms attached to an easement remain negotiable and often carry more long-term value than an incremental increase in the award.

Before you sign anything

Read the order of taking and the section 8A offer carefully, and pay attention to how the offer is characterized. Accepting an award as full and final just compensation ends your case. Accepting the same amount as a payment pro tanto preserves your right to claim more before a jury. That single word governs whether you still have a case, so have counsel look at the paperwork before you sign or endorse anything.

Frequently asked questions

What is a pro tanto payment in Massachusetts?

It is a partial payment you can accept without giving up your claim. Under G.L. c. 79, section 8A, if a person elects to accept the taking authority’s offer as a pro tanto payment, that election is without prejudice to and works no waiver or surrender of any right to claim a larger sum before an appropriate tribunal.

How long do I have to sue for damages in Massachusetts?

Three years. An owner who accepts the award pro tanto has three years from the date title vests in the taking authority to file a petition for assessment of damages under G.L. c. 79, section 14, heard in Superior Court, where a jury determines the fair market value of the property taken.

When must the taking authority make me an offer?

Within 60 days. Under section 8A, prior to the expiration of sixty days after the recording of the order of taking, the board of officers who made the taking must offer in writing to every person entitled to damages either a reasonable settlement amount or a payment pro tanto.

How is my property valued in Massachusetts?

At fair market value at the time of the taking, defined as the highest price a hypothetical willing buyer would pay a hypothetical willing seller in an assumed free and open market. In a partial taking, damages to the remainder are added and any special benefits are offset.

Did Massachusetts change its eminent domain law after Kelo?

Massachusetts did not adopt the categorical post-Kelo statutes many other states enacted. The requirement that a taking be for a public purpose was well established in Massachusetts long before Kelo, and the Supreme Judicial Court has continued to develop property owners’ rights in eminent domain cases.