Title 7. Eminent Domain Law · Chapter 3. The Right to Take · Article 4. Substitute Condemnation · Enacted 1975 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1240.320 lets a public entity condemn substitute property to trade for necessary property already devoted to a public use, when the necessary property's owner has agreed in writing to the exchange, the owner will devote the substitute property to the same public use, and the owner is independently authorized to condemn property for that use.
(a)Any public entity authorized to exercise the power of eminent domain to acquire property for a particular use may exercise the power of eminent domain to acquire for that use substitute property if all of the following are established:
(1)The owner of the necessary property has agreed in writing to the exchange.
(2)The necessary property is devoted to or held for some public use and the substitute property will be devoted to or held for the same public use by the owner of the necessary property.
(3)The owner of the necessary property is authorized to exercise the power of eminent domain to acquire the substitute property for such use.
(b)Where property is sought to be acquired pursuant to this section, the resolution of necessity and the complaint filed pursuant to such resolution shall specifically refer to this section and shall include a statement that the property is necessary for the purpose specified in this section. The determination in the resolution that the taking of the substitute property is necessary has the effect prescribed in Section 1245.250.
Plain-English Summary
This is the consensual version of substitute condemnation. A public entity may condemn substitute property to exchange for necessary property only when three conditions all hold: the owner of the necessary property has agreed in writing to the exchange, the necessary property is already devoted to or held for a public use that the owner will continue on the substitute property, and that owner is independently authorized to exercise eminent domain to acquire the substitute property for that same use.
That third condition is the one that keeps this section narrow. It isn't available to trade property with just any owner; only with an owner who is itself a condemnor for the relevant use, typically another public entity or a utility exercising delegated eminent domain authority. The whole arrangement depends on both sides being entities capable of exercising the power, one taking the substitute property to hand over, the other continuing its own public use on the new site.
Subdivision (b) requires the resolution of necessity and the complaint to specifically reference this section and state that the property is necessary for the purpose described here. The resolution's necessity finding then carries the evidentiary effect set out in § 1245.250.
Frequently Asked Questions
What three conditions must be met for a substitute-condemnation exchange under § 1240.320?
The necessary property's owner must agree in writing to the exchange, the owner must intend to devote the substitute property to the same public use, and the owner must itself be authorized to exercise eminent domain to acquire the substitute property for that use.
Can this section be used against an ordinary private landowner?
No. It requires the necessary property's owner to be authorized to acquire the substitute property by eminent domain for the same use, which typically limits this to another public entity or a similarly empowered condemnor.
What must the resolution of necessity and complaint say for this kind of taking?
They must specifically refer to § 1240.320 and state that the property is necessary for the purpose described in this section.
Amendment History
Added by Stats. 1975, Ch. 1275.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as:substitute property exchange eminent domain californiaconsensual substitute condemnation california