In a condemnation proceeding instituted by a public agency, such as an agency of the State, a county, a municipality or a school district, an order of possession of the property to be taken shall be entered forthwith, pursuant to 10 Del. C. § 6110(a), upon 10 days’ written notice of intent to present such order, to be given to the property owner or his attorney of record, supported by an affidavit of necessity executed by the chief administrative officer of the condemning agency, unless the property owner by affidavits, depositions, and/or verified answer shall show good cause why such order of possession should not be entered forthwith. Any hearing on the issue of good cause shall be held without delay and on such affidavits, depositions, and/or verified answer. Disposition of the issue of good cause shall be made by the Court without delay. This Rule shall be applicable solely to the condemnation proceedings brought by such public agencies. In all such condemnation proceedings the burden shall be upon the property owner to overcome the presumption of regularity and the prima facie case of necessity for a public use presented by the institution of such proceeding. Nothing herein contained shall affect the power of the Court, in its discretion, to enter an order of possession ex parte and without notice, as is provided by 10 Del. C. § 6110(a), upon proper cause being shown by the public agency.
Rule 71.1.Condemnation of property
Part VIII: Provisional and Final Remedies and Special Proceedings · Last amended July 20, 1962 · Last verified July 28, 2026
In one sentenceRule 71.1 lets a public agency condemning property obtain an order of possession without delay, on 10 days' written notice supported by an affidavit of necessity, unless the owner shows good cause, and places the burden on the owner to overcome the presumption of regularity and necessity.
Full Text of Rule 71.1
Amendment History
Added, effective July 20, 1962.
Plain-English Summary
Rule 71.1 applies solely to condemnation proceedings brought by a public agency -- an agency of the State, a county, a municipality, or a school district. Once such an agency gives the property owner or the owner's attorney 10 days' written notice of intent to present an order of possession, and supports it with an affidavit of necessity from the condemning agency's chief administrative officer, the Court enters that order forthwith under 10 Del. C. § 6110(a) -- unless the owner shows good cause against it through affidavits, depositions, or a verified answer.
If the owner raises good cause, the Court holds a hearing on that issue without delay, based on those same affidavits, depositions, or verified answer, and rules on it without delay. The rule places the burden on the property owner to overcome the presumption of regularity and the prima facie case of necessity for public use that the agency's filing itself establishes.
Rule 71.1 doesn't take away the Court's separate power, under 10 Del. C. § 6110(a), to enter an order of possession ex parte and without notice when the public agency shows proper cause for that instead.
Frequently Asked Questions
How much notice does a public agency have to give a property owner before getting an order of possession under Rule 71.1?
Rule 71.1 requires 10 days' written notice of intent to present the order, given to the property owner or the owner's attorney of record, supported by an affidavit of necessity from the condemning agency's chief administrative officer.
Can a property owner stop an order of possession in a condemnation case?
Yes, by showing good cause through affidavits, depositions, or a verified answer. Rule 71.1 requires the Court to hold a hearing on that issue without delay and to rule on it without delay.
Who has the burden of proof in a Rule 71.1 condemnation proceeding?
The property owner. Rule 71.1 places the burden on the owner to overcome the presumption of regularity and the prima facie case of necessity for a public use that the agency's institution of the proceeding establishes.
Does Rule 71.1 apply to condemnation actions brought by private parties?
No. Rule 71.1 applies solely to condemnation proceedings instituted by a public agency, such as an agency of the State, a county, a municipality, or a school district.
Can a court enter an order of possession without any notice to the property owner?
Rule 71.1 preserves the Court's discretion, under 10 Del. C. § 6110(a), to enter an order of possession ex parte and without notice when the public agency shows proper cause.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
Also known as: eminent domain delaware civil rulecondemnation order of possession delaware10 del c 6110 condemnationrule 71.1 delaware superior court