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WPI 150.06.02 Just Compensation—Temporary Occupancy

6A WAPRAC WPI 150.06.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 150.06.02 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part X-A. Eminent Domain

Chapter 150. Eminent Domain—General Instructions

WPI 150.06.02 Just Compensation—Temporary Occupancy

Just compensation for temporary occupancy of property means the reasonable cost of restoring the property to a condition equally valuable as the condition before the occupancy, plus the fair market rental value of the occupied property for the term of the occupancy[, plus any appropriate reduction in rent during the occupancy on contiguous property in the same ownership and devoted to the same use,] [plus any permanent loss in the value of the occupied property, or contiguous property in the same ownership and devoted to the same use, caused by the temporary occupancy]. [If the occupied property can be rented for a lesser use during the term of the temporary occupancy, the measure of damages is the difference in the fair market rent before the occupancy and the fair market rent during the occupancy.] [In determining compensation, you shall offset against such compensation any special benefits accruing to the remaining property as a result of the project.]

NOTE ON USE

Use this instruction when the agency's occupancy of the property will be temporary. When a benefit to the remaining property is alleged, then also use WPI 150.07.01 (What Benefits May Be Offset) to instruct jurors that special benefits are offset against the amount of compensation.

Use the bracketed material depending on the evidence in the case.

COMMENT

Measuring compensation. The measure of compensation in a case involving temporary, rather than permanent, injury is well settled: compensation consists of the reasonable expense of restoring the land and the loss of income pending such restoration within a reasonable time. Colella v. King County, 72 Wn.2d 386, 433 P.2d 154 (1967) (trespass case); Keesling v. City of Seattle, 52 Wn.2d 247, 253, 324 P.2d 806 (1958) (for both trespass and eminent domain cases, the recovery for temporary injuries is the cost of restoration and loss of use); Harkoff v. Whatcom County, 40 Wn.2d 147, 153, 241 P.2d 932 (1952) (trespass case); Songstad v. Municipality of Metro. Seattle, 2 Wn.App. 680, 690, 472 P.2d 574 (1970) (trespass case). The term “fair market rental value” is what is meant by the phrases “loss of use” or “loss of income” in the cases, as distinguished from impacts to the income generated by businesses conducted on the affected property or the consequential damages to those businesses as a result of the temporary occupancy.

Measuring effect on unencumbered property. The measure of compensation must take into account:

whether the existence of a temporary construction easement will restrict the property owner from using the unencumbered portion of the land for its highest and best use during the easement's term. Often an appropriate method to estimate the proper adjustment to reflect the diminution in the land's value by reason of the temporary easement is to apply the rent loss to all lands so affected. If the property can be rented for a lesser use during the term of the [temporary construction easement], the measure of damage is usually measured by the rent differential between the before and after situations.

Section D-10, Uniform Standards for Federal Land Acquisitions (Interagency Land Acquisition Conference, 2000).

[Current as of October 2016.]

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