17 AAC 45.255. Condemnation of leasehold or improvements

(a) This section applies to the taking by negotiation, court action, or otherwise of all or a part of a premises by any entity or person vested with the power of eminent domain, including the department.

(b) If all of a premises is taken,

(1) the lease, permit, or concession and all rights of the lessee, permittee, or concessionaire in the premises terminate as of the date of taking and the rent payable will be adjusted so that rent is due only until the date that the lessee, permittee, or concessionaire is required to surrender possession of the entire premises; and

(2) the department is entitled to all payment made for the taking, except for any amount paid as the fair market value of the permanent improvements owned by the lessee, permittee, or concessionaire.

(c) If a part of a premises is taken and the taking reduces the ground area of the premises by 30 percent or more or materially affects the authorized use of the premises by the lessee, permittee, or concessionaire of the premises, the lessee, permittee, or concessionaire has the right to terminate the lease, permit, or concession by giving written notice to the department no later than 90 days after the date of taking.

(d) If the lessee, permittee, or concessionaire elects to terminate the lease, permit, or concession under (c) of this section, the portion of the premises taken is governed by (b) of this section and disposal of the remainder of any permanent improvements owned by the lessee, permittee, or concessionaire is governed by 17 AAC 45.245 or 17 AAC 45.250, as applicable, and the terms of the lease, permit, or concession.

(e) If the lessee, permittee, or concessionaire elects not to terminate the lease, permit, or concession under (c) of this section, the lease, permit, or concession continues in effect for the portion of the premises not taken, and the department is entitled to the full payment made for the portion taken, less any portion of the proceeds paid as the fair market value of the permanent improvements owned by the lessee, permittee, or concessionaire on the taken portion of the premises. The department will adjust the rent for the remainder of the term to reflect the taking as of the date of taking.

(f) If a part of a premises is taken and the taking reduces the ground area of the premises by less than 30 percent and the department determines that the taking does not materially affect the authorized use of the premises by the lessee, permittee, or concessionaire, the lease, permit, or concession continues in effect for the portion of the premises not taken. The department is entitled to the full payment made for the portion taken, less any portion of the proceeds paid as the fair market value of the permanent improvements owned by the lessee, permittee, or concessionaire on the taken portion of the premises. The department will adjust the rent for the remainder of the term to reflect the taking as of the date of taking.

(g) Nothing in this section impairs the rights, if any, of a lessee, permittee, or concessionaire to relocation benefits under AS 34.60.

(h) The department's enforcement of a lease, permit, concession, or law against a lessee, permittee, or concessionaire is not a taking under this section.

History: Eff. 3/28/2002, Register 161

Authority: AS 02.15.020

AS 02.15.060

AS 02.15.070

AS 02.15.090

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