Title 16, ConservationRelease 119-73not60

§459b–3 Acquisition by Condemnation

Title 16 › Chapter 1— NATIONAL PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES › Subchapter LXIII— NATIONAL SEASHORE RECREATIONAL AREAS › § 459b–3

Last updated Apr 5, 2026|Official source

Summary

When the Secretary takes improved property by condemnation, the individual owner (not a corporation) can choose to keep the right to live on the property for noncommercial, residential use. That right can be for up to 25 years or for a shorter time the owner picks. Owners who held the same kind of estate on September 1, 1959, may instead choose a term tied to their estate type: a life estate stays for the life named, and a fee simple can be kept until the owner’s death (or the survivor’s). If a life tenant holds the property, that life tenant must make the election in the second case, and for the first option both the life tenant and the remainderman must agree. Owners of a lease (term of years) may keep the right for the rest of their lease or for 25 years, whichever is shorter. These retained rights cannot substantially harm people with liens or other charges on the property. The rights run with the land and can be transferred. The government pays no more than the property’s fair market value minus the value of the right kept. The Secretary can end a retained right if the use breaks the Secretary’s regulations, but any use that follows a town zoning bylaw the Secretary approved and that is in force cannot be treated as nonconforming; if the Secretary ends a right, the owner is paid the fair market value of what remained. Improved property: a detached one-family house whose construction began before September 1, 1959, plus enough of the land (at least three acres or all land owned with the house) and small accessory structures; beaches or waters may be left out for public access. The Secretary’s power to condemn such improved property was suspended in the listed area for one year after August 7, 1961, and after that is suspended in any town that has an approved zoning bylaw in force. The Secretary’s power is also suspended for particular property used for commercial or industrial purposes during times that use is allowed and while the first application for permission is pending if that application was made after August 7, 1961 and not later than the date the seashore was established. Nothing here stops condemnation being used to get a clear, marketable title free of encumbrances.

Full Legal Text

Title 16, §459b–3

Conservation, Source: USLM XML via OLRC

(a)(1)The beneficial owner or owners, not being a corporation, of a freehold interest in improved property which the Secretary acquires by condemnation may elect, as a condition to such acquisition, to retain the right of use and occupancy of the said property for noncommercial residential purposes for a term of twenty-five years, or for such lesser time as the said owner or owners may elect at the time of such acquisition.

(2)The beneficial owner or owners, not being a corporation, of a freehold estate in improved property which property the Secretary acquires by condemnation, who held, on September 1, 1959, with respect to such property, an estate of the same nature and quality, may elect, as an alternative and not in addition to whatever right of election he or they might have under paragraph (1) of this subsection, to retain the right of use and occupancy of the said property for noncommercial residential purposes (i) for a term limited by the nature and quality of his or their said estate, if his or their said estate is a life estate or an estate pur auter vie, or (ii) for a term ending at the death of such owner or owners, or at the death of the survivor of them, if his or their said estate is an estate of fee simple.

(3)Where such property is held by a natural person or persons for his or their own life or lives or for the life or lives of another or others (such person or persons being hereinafter called “the life tenant”), with remainder in another or others, any right of election provided for in paragraph (2) of this subsection shall be exercised by the life tenant, and any right of election provided for in paragraph (1) of this subsection shall be exercised by the concurrence of the life tenant and the remainderman or remaindermen.

(4)The beneficial owner or owners of a term of years in improved property which the Secretary acquires by condemnation may elect, as a condition to such acquisition, to retain the right of use and occupancy of the said property for noncommercial residential purposes for a term not to exceed the remainder of his or their said term of years, or a term of twenty-five years, whichever shall be the lesser. The owner or owners of the freehold estate or estates in such property may, subject to the right provided for in the preceding sentence, exercise such right or rights of election as remain to them under paragraphs (1) and (2) of this subsection.

(5)No right of election accorded by paragraphs (1), (2), or (4) of this subsection shall be exercised to impair substantially the interests of holders of encumbrances, liens, assessments, or other charges upon or against the property.

(6)Any right or rights of use and occupancy retained pursuant to paragraphs (1), (2), and (4) of this subsection shall be held to run with the land, and may be freely transferred and assigned.

(7)In any case where a right of use and occupancy for life or for a fixed term of years is retained as provided in paragraph (1), (2), or (4) of this subsection, the compensation paid by the Secretary for the property shall not exceed the fair market value of the property on the date of its acquisition by the Secretary, less the fair market value on such date of the said right retained.

(8)The Secretary shall have authority to terminate any right of use and occupancy of property, retained as provided in paragraph (1), (2), or (4) of this subsection, at any time after the date when any use occurs with respect to such property which fails to conform or is in any manner opposed to or inconsistent with any applicable standard contained in regulations issued pursuant to section 459b–4 of this title and in effect on said date: Provided, That no use which is in conformity with the provisions of a zoning bylaw approved in accordance with said section 459b–4 which is in force and applicable to such property shall be held to fail to conform or be opposed to or inconsistent with any such standard. In the event that the Secretary exercises the authority conferred by this paragraph, he shall pay to the owner of the right so terminated an amount equal to the fair market value of the portion of said right which remained on the date of termination.

(b)(1)The Secretary’s authority to acquire property by condemnation shall be suspended with respect to all improved property located within such area in all of the towns referred to in section 459b of this title for one year following August 7, 1961.

(2)Thereafter such authority shall be suspended with respect to all improved property located within such area in any one of such towns during all times when such town shall have in force and applicable to such property a duly adopted, valid zoning bylaw approved by the Secretary in accordance with the provisions of section 459b–4 of this title.

(c)The Secretary’s authority to acquire property by condemnation shall be suspended with respect to any particular property which is used for commercial or industrial purposes during any periods when such use is permitted by the Secretary and during the pendency of the first application for such permission made to the Secretary after August 7, 1961 provided such application is made not later than the date of establishment of the seashore.

(d)The term “improved property,” wherever used in sections 459b to 459b–8 of this title, shall mean a detached, one-family dwelling the construction of which was begun before September 1, 1959 (hereinafter referred to as “dwelling”), together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures accessory to the dwelling which are situated on the land so designated. The amount of the land so designated shall in every case be at least three acres in area, or all of such lesser amount as may be held in the same ownership as the dwelling, and in making such designation the Secretary shall take into account the manner of noncommercial residential use in which the dwelling and land have customarily been enjoyed: Provided, however, That the Secretary may exclude from the land so designated any beach or waters, together with so much of the land adjoining such beach or waters as the Secretary may deem necessary for public access thereto.

(e)Nothing in this section or elsewhere in sections 459b to 459b–8 of this title shall be construed to prohibit the use of condemnation as a means of acquiring a clear and marketable title, free of any and all encumbrances.

Reference

Citations & Metadata

Citation

16 U.S.C. § 459b–3

Title 16, Conservation

Last Updated

Apr 5, 2026

Release point: 119-73not60