CACI 3511A Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410, 1263.420(a))
California Civil Jury Instructions CACI
3511A Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410, 1263.420(a))
The [name of condemnor] has taken only a part of [name of property owner]’s property. [Name of property owner] claims that [his/her/nonbinary pronoun/its] remaining property has lost value as a result of the taking because [specify reasons alleged for diminution of value of remaining property]. This loss in value is called “severance damages.”
Severance damages are the damages to [name of property owner]’s remaining property caused by the taking. If you determine that the remaining property has lost value because of the taking, severance damages must be included in determining just compensation.
Severance damages are determined as follows:
1.Determine the fair market value of the remaining property on [date of valuation] by subtracting the fair market value of the part taken from the fair market value of the entire property;
2.Determine the fair market value of the remaining property after the [name of condemnor]’s proposed project is completed; and
3.Subtract the fair market value of the remaining property after the [name of condemnor]’s proposed project is completed from the fair market value of the remaining property on [date of valuation].
New September 2003; Revised December 2016; Revised and Renumbered May 2017
Directions for Use
Give this instruction if the owner claims that property not taken has lost value because of the taking, for example because a view has been lost. It is for the jury to determine if such a loss has actually occurred as long as the claim is not speculative, conjectural, or remote. (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 973 [62 Cal.Rptr.3d 623, 161 P.3d 1175].) Read CACI No. 3512, Severance Damages—Offset for Benefits, if benefits to the owner’s remaining property are at issue.
A property owner may also be able to recover for economic loss to the remaining property incurred during the construction of the project. (Code Civ. Proc., § 1263.420(b); see City of Fremont v. Fisher (2008) 160 Cal.App.4th 666, 676 [73 Cal.Rptr.3d 54].) For an instruction on this loss, see CACI No. 3511B, Damage to Remainder During Construction.
Sources and Authority
•Right to Severance Damages. Code of Civil Procedure section 1263.410.
•Damages to Remainder After Severance. Code of Civil Procedure section 1263.420(a).
•Benefit to Remainder. Code of Civil Procedure section 1263.430.
•“When property acquired by eminent domain is part of a larger parcel, compensation must be awarded for the injury, if any, to the remainder. Such compensation is commonly called severance damages. When the property taken is but part of a single legal parcel, the property owner need only demonstrate injury to the portion that remains to recover severance damages.” (City of San Diego v. Neumann (1993) 6 Cal.4th 738, 741 [25 Cal.Rptr.2d 480, 863 P.2d 725], internal citations omitted.)
•“The claimed loss in market value must directly and proximately flow from the taking. Thus, recovery may not be based on ‘ “ ‘speculative, remote, imaginary, contingent, or merely possible’ ” ’ events.” (City of Livermore v. Baca (2012) 205 Cal.App.4th 1460, 1466 [141 Cal.Rptr.3d 271].)
•The court determines as a matter of law what constitutes the “larger parcel” for which severance damages may be obtained: “The Legislature has framed the question of whether property should be viewed as an integrated whole in terms of whether the land remaining after the taking forms part of a ‘larger parcel’.” (City of San Diego, supra, 6 Cal.4th at p. 745, internal citations omitted.)
•“As we said in Pierpont Inn, ‘Where the property taken constitutes only a part of a larger parcel, the owner is entitled to recover, inter alia, the difference in the fair market value of his property in its “before” condition and the fair market value of the remaining portion thereof after the construction of the improvement on the portion taken. Items such as view, access to beach property, freedom from noise, etc. are unquestionably matters which a willing buyer in the open market would consider in determining the price he would pay for any given piece of real property.’ Severance damages are not limited to special and direct damages, but can be based on any factor, resulting from the project, that causes a decline in the fair market value of the property.” (Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 712 [66 Cal.Rptr.2d 630, 941 P.2d 809], internal citations omitted.)
•“Both sides here thus agree that the court, not the jury, must make certain determinations that are a predicate to the award of severance damages. But [condemnor] is on weaker ground when it attempts to derive … a general rule that ‘as a matter of constitutional and decisional law, all issues having to do with the existence of, or entitlement to, severance damages are entrusted to the trial judge,’ such that ‘[o]nly after the trial judge has determined that severance damages exist does the jury consider the amount of those severance damages.’ [Condemnor]’s proposed rule assumes that questions relating to the measurement of severance damages can be readily distinguished from questions relating to the entitlement to them in the first place but, as we have previously cautioned, the two concepts are not necessarily ‘so easily separable.’ ” (Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p. 972, original italics, internal citations omitted.)
•“[W]here the property owner produces evidence tending to show that some other aspect of the taking … ‘naturally tends to and actually does decrease the market value’ of the remaining property, it is for the jury to weigh its effect on the value of the property, as long as the effect is not speculative, conjectural, or remote.” (Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p. 973.)
•“In determining severance damage, the jury must assume ‘the most serious damage’ which will be caused to the remainder by the taking of the easement and construction of the property. The value of the remainder after the condemnation has occurred is referred to as the ‘after’ value of the property. The diminution in fair market value is determined by comparing the before and after values. This is the amount of the severance damage.” (San Diego Gas & Electric Co. v. Daley (1988) 205 Cal.App.3d 1334, 1345 [253 Cal.Rptr. 144], internal citations omitted, disapproved on other grounds in Los Angeles County Metropolitan Transportation Authority, supra, 16 Cal.4th at p. 720.)
•“[S]everance damages are not limited to specific direct damages but can be based on any indirect factors that cause a decline in the market value of the property. California decisions have indicated the following are compensable as direct damages under section 1263.410: (1) impairment of view, (2) restriction of access, (3) increased noise, (4) invasion of privacy, (5) unsightliness of the project, (6) lack of maintenance of the easement and (7) nuisances in general such as trespassers and safety risks. Several courts have recognized that the condemnee should be compensated for any characteristic of the project which causes ‘an adverse impact on the fair market value of the remainder.’” (San Diego Gas & Electric Co., supra, 205 Cal.App.3d at p. 1345.)
•“When ‘the property acquired [by eminent domain] is part of a larger parcel,’ in addition to compensation for the property actually taken, the property owner must be compensated for the injury, if any, to the land that he retains. Once it is determined that the owner is entitled to severance damages, they, too, normally are measured by comparing the fair market value of the remainder before and after the taking.” (City of San Diego, supra, 6 Cal.4th at p. 745, internal citations and footnote omitted.)
•“[W]hether access to a property has been ‘substantially impaired’ for purposes of determining severance damages is a question for the court, even though ‘[s]ubstantial impairment cannot be fixed by abstract definition; it must be found in each case upon the basis of the factual situation.’ ” (City of Perris v. Stamper (2016) 1 Cal.5th 576, 594 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)