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Section 2: Approved Special Clauses for Use in Conveyance Instruments

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Use of Clauses (for State and LPA)

In a right of way transaction, conditions may be encountered that are normal under certain circumstances but not applicable in all cases. Standard clauses established to cover these circumstances are included in either the conveyance instrument or the agreement, or in both, in accordance with the following discussion:

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Retention of Improvements

Most standard conveyance forms include an improvement retention clause. Excluding bisected improvements, each improvement retained by the owner is listed in this clause. If no improvement is retained, the clause is stricken or the word "none" (or the words "not applicable") is inserted to confirm that there is no oversight in deed preparation. If a conveyance form doesn't contain a retention clause and improvements are retained, then a retention clause is inserted. The retention clause is repeated in the MOA or purchase agreement. When there is a combination of retained improvements and retained bisected improvements, the appropriate bisection clauses are added to the instrument. Bisected improvements are not listed in the form's printed segment that shows the normal retention clause for retained improvements.

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Appointment of Single Payee or Attorney-in-Fact

To eliminate the necessity of circulating the warrant for personal endorsement by each grantor when the owners are widely scattered or distantly located, when executing the MOA or purchase agreement, said owners may name and designate one owner as the payee and authorize the State to issue its warrant payable to such owner. In this instance, the Form 132 or ROW-A-15, Payment Request, as appropriate, payment assembly is prepared accordingly, and the following clause is inserted in the memorandum of agreement or purchase agreement:

"We, the undersigned owners of the premises herein described, hereby appoint (name) as co-owner of said land to receive all of the consideration herein above set forth, and the State is hereby authorized to make its warrant payable to said (name) only, which shall constitute full, total and complete payment for all interest owned and to be conveyed by the undersigned in compliance with the terms of this instrument. "

Additionally, if this procedure is followed, the Attorney's Certificate will need to be modified as outlined in Attorney's Certificates: Title Examination, Escrow, and Closing.

If the foregoing procedure is not acceptable to the owners, they may eliminate the necessity of circulating the warrant by naming and appointing an attorney-in-fact (who can not be a TxDOT employee) to receive the warrant, endorse the same for them, cash the warrant, and disburse the proceeds. To accomplish this, it will be necessary to insert the following clause in the MOA or purchase agreement:

"We, the undersigned owners of the premises herein described, hereby appoint and designate (name) as our Attorney-in-Fact for the purpose of and with full power of attorney to receive and accept the State's warrant in the sum of the consideration herein above set forth, payable to us as the owners and grantors, and as our agent the said (name) is hereby authorized and empowered to endorse and cash said warrant and make disbursement of said consideration to each owner in accordance with their interest conveyed. Delivery of said warrant by the State to the above named Attorney-in-Fact shall constitute full performance by the State in said transaction, and the State shall not be held accountable or in any manner responsible for the acts of said agent thereafter. "

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Bisected Improvements

When the improvement is classified as "Category I" and therefore to be acquired in whole by the State, or retained in whole by the owner, clauses for the following situations are used:

If the State acquires title to the whole improvement, the following clause is inserted in the agreement and deed:

"And for the same consideration described above, and upon the same conditions, Grantors do hereby bargain, sell and convey unto the State of Texas that portion of the following improvement(s) located on the remaining property out of which the above-described premises were originally a portion, to wit:(Describe bisected improvement(s) such as (1) two-story, brick residence, (2) two-car frame garage, (3) 20' by 30' frame tool shed, etc. )”

Immediately following such clause in the agreement, the following clause is inserted:

"Grantors understand and agree that it will be necessary for the State to enter upon their remaining property out of which the above-described property was conveyed for the purpose of removing that portion of the above-described improvement(s) which is located on such Grantors' remaining property. Grantors hereby authorize the State, its agents or assigns, to enter upon such remaining property for the purpose of removing said improvement(s) and expressly waive all damages or claims that may result to the remaining property of the Grantors as a result of such entry and removal of said improvement(s). "

If the owner retains the whole improvement, the following clauses are inserted in the agreement and deed:

"It is understood that Grantors are retaining title to the following listed bisected improvement(s): (Describe bisected improvement(s) such as (1) three bedroom brick residence, (2) 50' by 100' barn, etc. )

Such improvement(s) shall be removed from the premises hereby conveyed by the Grantors on or before the XXth day of XXXX , 2002, subject, however, to such extensions of time as may be granted by the State in writing, but in the event Grantors fail for any reason to remove said improvement(s) within the time herein provided for, title to said improvement(s) including the portion or portions thereof located on the Grantors' remaining property, shall immediately vest in the State of Texas, all for the same consideration recited.

It is further understood and agreed that in the event title to said improvement(s) vests in the State of Texas under the provisions of the paragraph next above, Grantors authorize the State, its agents or assigns, to enter upon their remaining property for the purpose of removing said bisected improvement(s), and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors as a result of such entry and removal of said improvement(s).”

When determined that the improvement is classified as "Category II" and is not acquired in whole by the State, the following clauses are used:

If the owner retains that portion of the improvement lying within the taking, the following clause is inserted in the deed and agreement:

"It is understood that Grantors are retaining title to the following listed bisected improvement(s):(Describe bisected improvement(s) such as (1) three bedroom brick residence, (2) 50' x 100' barn, etc. )

Such improvements shall be removed from the premises hereby conveyed by Grantors at their own expense on or before the XXth day of XXXX , 2002, subject, however, to such extensions of time as may be granted by the State in writing, but in the event Grantors fail for any reason to remove said improvement(s) within the time herein provided for, title to that portion of said improvement(s) located upon the premises hereby conveyed shall immediately vest in the State of Texas, all for the same consideration herein above recited.”

Immediately following such clause, the following clause will be added in the agreement but not the deed:

“Grantors specifically understand and agree that in the event title to the aforesaid portion of the bisected improvement(s) passes to the State, the State will cut said bisected improvements at the line of bisection and remove said portion of the bisected improvement(s) from the above-described property, and Grantors hereby authorize the State, its agents or assigns, to make such cut(s) and additionally, Grantors hereby authorize the State, its agents or assigns, to enter upon the Grantor’s remaining property (out of which the above-described property was conveyed), for the purpose of making such cuts and removing said improvement(s) and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors or damages that may result to the remainder of said improvement(s) by reason of said entry, cutting, and removal of said improvement(s)."

If the State acquires title to the part of the improvement located within the right of way limits and the improvement will be cut, no reference to the improvement will be made in the deed, but the following clause will be used in the agreement:

"It is further understood and agreed that Grantors will cut at the line of bisection the bisected improvement(s) located on the above-described property on or before XXth day of XXXX , 2002.

It is further understood and agreed that in the event Grantors fail to cut the aforesaid bisected improvement(s) in the time allowed, the State will cut said bisected improvements at the line of bisection and remove said portion of the bisected improvement(s) from the above-described property, and Grantors hereby authorize the State, its agents or assigns, to make such cut(s) and additionally, Grantors hereby authorize the State, its agents or assigns, to enter upon the Grantor’s remaining property (out of which the above-described property was conveyed), for the purpose of making such cuts and removing said improvement(s) and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors or damages that may result to the remainder of said improvement(s) by reason of said entry, cutting, and removal of said improvement(s)."

The State may acquire title to the entire improvement at the owner's request, when the owner contends the improvement remainder is of no use to him. However, payment can not exceed the value of the part of the improvement taken, plus damage to the remainder. The State's taking of the whole improvement can benefit both the owner and the State in that the improvement remainder is cleared from the property owner's land at no cost to the owner. Also, the State, by its ability to sell the whole improvement, can realize a return on its investment.

When this procedure is followed, the property owner should permit the State sufficient time to clear improvements from the remaining land. The agreement must include the two clauses in preceding paragraph for Category I improvements and the deed must include the first clause.

If settlement cannot be reached by negotiation, and eminent domain proceedings become necessary, furnish OAG with TxDOT's findings as to whether the bisected improvements fall into Category I or II, so that appropriate special pleadings may be made.

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Stock Pass and other Pass Privileges

All special clauses for this subject are set forth in Passes, Stock Passes, and Cattle Guards.

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Special Mineral Clause

If a property owner will not sign a deed containing the standard mineral reservation, it is permissible for the property owner to retain all minerals as a concession to avoid condemnation. No further concession can be made without prior approval of the ROW Program Office in Austin. Owners who insist on their own phraseology should be reminded that, if the State condemns, only oil, gas and sulfur are reserved from the conveyance. When use of a special mineral clause is necessary, the standard mineral reservation clause is to be stricken from the deed and the following language inserted:

"Grantors reserve all of the oil, gas and sulphur and other minerals in and under said land but waive any and all rights of ingress and egress to the surface thereof for the purpose of exploring, developing, mining or drilling for the same; provided, however, that operations for exploration or recovery of any such minerals shall be permissible so long as all surface operations in connection therewith are located at a point outside the above described property and upon the condition that none of such operations shall be conducted so near the surface of said land as to interfere with the intended use thereof or in any way interfere with, jeopardize, or endanger the facilities of the Texas Department of Transportation or create a hazard to the public users thereof; it being intended, however, that nothing in this reservation shall affect the title and the rights of the State to take and use without additional compensation any water, stone, earth, gravel, caliche, iron ore gravel or any other road building materials upon, in and under said land for the construction and maintenance of the State Highway System of Texas."

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Retention of Private Right

When a private right is retained, such as the owner of a private utility line retaining ownership to permit continued operation in the new or improved highway facility, the following clauses, setting forth the rights retained, must be included in the conveyance instrument, and in the MOA or purchase agreement:

"Save and Except, however, Grantors reserve unto themselves, their heirs and assigns, title to and the right to operate and maintain XXXXXXXXXXX subject to such regulations as are determined by the State to be necessary in the interest of public safety and in compliance with approved engineering principles and practice.

Grantors hereby agree that access for servicing their facilities will be limited to access via (1) frontage roads where provided, (2) nearby or adjacent public roads and streets, or (3) trails along or near the highway right of way lines, connecting only to an intersecting road; from any one or all of which entry may be made to the outer portion of the highway right of way for normal service and maintenance operations. The Grantors' rights of access to the through-traffic roadways and ramps shall be subject to the same rules and regulations as apply to the general public, except however, if an emergency situation occurs, and usual means of access for normal service operations will not permit the immediate action required by the Grantors in making emergency repairs as required for the safety and welfare of the public, the Grantors shall have a temporary right of access to and from the through-traffic roadways and ramps as necessary to accomplish the required emergency repairs.”

If the line is owned by a party other than the fee owner, then a quitclaim deed, containing the preceding clauses, must be used. The quitclaim deed contains property descriptions identical to those used in the deed conveying the parcel.

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Conflict of Title and Encroaching Improvements (for State)

When field surveys and the title search establish conflict in title, grantors should include in the parcel conveyance a quitclaim covering the specific conflict area. This is accomplished by a clause, similar to the following, included in the deed after the general warranty clause and preceding the signature block. Land interests created by encroaching improvements may also be acquired by using such a clause:

"And for the same consideration described above, and upon the same conditions, Grantors do hereby bargain, sell, and quitclaim unto the State of Texas and its successors and assigns forever, all of Grantors' rights, title, and interest in and to XXXXX in the City of XXXXXXX, Texas, together with all and singular the rights and appurtenances thereto in anywise belonging.”

If the property owner is to retain ownership of an encroaching improvement, then the improvement is to be listed in the improvement clause in the deed and in the agreement.

Occasionally, improvements that encroach on an abutting property belonging to another owner are encountered. Such an encroachment may occur for a number of reasons. Common examples include errors made in building improvements and unknown boundary lines. By personal contact with the appropriate parties at the mapping or appraisal stage, it is possible to establish ownership of the encroaching improvement. Such ownership should be agreed upon by the involved property owners. This permits correct appraisals and appropriate payments to be made. It is necessary to extinguish any and all interests abutting property owners may have to the improvement that encroaches on their land, and to the land involved in the State's taking.

Where improvements encroach upon existing public right of way, a conveyance or quitclaim will be necessary only when the improvement owner has an interest in the land used for right of way. Adverse possession and prescriptive rights do not run against the State. Encroachments located within the proposed right of way are best handled by simultaneous closings of the parcels involved. However, if the parcels are not closed simultaneously, the right of way deed for the parcel to be purchased must be supported by a quitclaim deed from the adjoining owner quitclaiming any interest he may have acquired, due to the encroachment, in the land deeded the State.

Also, when the misplaced improvement is wholly located on the land of another owner and inside the proposed right of way line, it is necessary, whether there is a simultaneous closing or not, for the improvement owner to quitclaim any interest he has in the adjoining owner's land, on which the improvement is wholly located. If, during negotiation for his property, it is determined that the owner of the misplaced improvement is to be paid by the State for the improvement, and there is not a simultaneous closing, the owner of the adjoining land on which the misplaced improvement is either partially or wholly located, should disclaim any improvement interest. This may be done by execution of an instrument granting right of entry to his land by prospective bidders, or for improvement removal.

Another difficulty that may be encountered is an encroachment that is partially outside the right of way line. This will require an instrument granting right of entry, and including a disclaimer from the adjoining owner if title to the improvement is to pass to the State.

If an improvement is jointly owned, the owners must either retain the improvement or concurrently convey full title to the State. The State will not acquire a partial interest anticipating future acquisition of the remaining improvement interest.

If a problem involving encroachments is encountered which is not covered in the foregoing paragraphs, submit the problem in detail, along with necessary maps or sketches, to the ROW Program Office in Austin for review and guidance.

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Conflict of Title and Encroaching Improvements (for LPA)

The procedures for acquiring parcels involving conflicts of title and encroaching improvements will be in accordance with this section, except when the alternative of obtaining quitclaim deeds in lieu of simultaneous closings is applicable. Reimbursement to LPAs for these parcels may be made when quitclaims are not obtained, provided acceptable title to these parcels is furnished the State.

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Temporary Right of Occupancy

In the acquisition of right of way, the owner or tenant in possession is allowed a temporary period of occupancy if necessary for relocation purposes. Such temporary occupancy is considered a proper approach in the treatment of displaced families and businesses. Under the State's right of way acquisition program, by which property is normally acquired well in advance of construction needs, a short period of occupancy will not interfere with the project schedule. However, it is the Department's responsibility to safeguard against prolonged occupancy periods that can not be justified by relocation needs.

Owners and tenants may be allowed a temporary right of occupancy regardless of whether the property is improved or unimproved, and if improved, regardless of whether improvements are retained by the owner or acquired by the State. When a tenant will occupy both State-owned property and retained improvements, tenant's use of retained improvements is a matter between the tenant and the owner of the improvements. The Occupancy Agreement, (Form ROW-N-19), with the State is applicable only to the State-owned portion of the premises. In condemnation cases, temporary occupancy should be held to an absolute minimum since condemnation is not recommended until early possession of the property is needed, and would defeat the advantages of this factor in negotiations. The occupancy agreement is not needed when complying with Notices Required (in TxDOT’s Right of Way Manual Vol. 3 - Relocation Assistance). Temporary occupancy is permitted only through written agreement in accordance with the following instructions.

The agreement as to right of occupancy by an owner is set forth in the MOA or purchase agreement as part of the right of way transaction. Where temporary occupancy by the fee owner is permitted in negotiation, the following clause will be inserted in the MOA or purchase agreement, but is not to be included in the conveyance instrument:

"In consideration of the State's allowing Grantors to occupy the herein described land after its acquisition by the State, Grantors agree that such occupancy shall terminate not later than (date), subject, however, to such written extensions of times as the State may grant. Such extensions will be granted only upon a showing by Grantors of extenuating circumstances, which in the sole opinion of the State will justify such extension.

Grantors agree that such occupancy shall be for their benefit exclusively, and the Grantors acknowledge that said occupancy hereunder shall be for their sole benefit and that no payment has been made or is to be made to the State for use of said premises, and that any attempt to assign such benefit, or to lease, rent, sublet, or in any manner suffer or permit occupancy of the land or improvements thereon by a third party shall automatically suspend the operation of this provision, and the State shall then have immediate right of possession.

With respect to any improvements located upon said land, title to which is to be acquired by the State, Grantors shall make every reasonable effort to keep such improvements in good repair and shall exercise such diligence as may be necessary to protect same from damage.

Grantors acknowledge that they are occupying the premises "AS IS" with all faults. Grantors hereby waive any and all causes of action, claims, demands, damages and liens based on any warranty, expressed or implied, including but not limited to any implied warranty of suitability for a particular purpose and any warranty of habitability. Grantors shall indemnify and hold harmless the State, its successors or assigns and its agents, representatives and employees ("Indemnified Parties"), against any and all proceedings, suits, actions, claims, damages, judgments, liabilities, awards and expenses whatsoever ("Claims") which may be brought or instituted on account of or growing out of any and all injuries or damages, including death, to persons or property relating to any occurrence in, upon, at or from the said premises or any part thereof, and all losses thereto, including but not limited to, all costs of defending against, investigating and settling the Claims.

Grantors agree that the State's employees or agents may make inspections of the premises from time to time, and that the State will be notified at the time Grantors vacate the premises."

If the fee owner does not occupy the premises, no right of occupancy will be granted him in the right of way transaction. However, if the premises are occupied by a leaseholder or a tenant on a month to month basis, and a short period of time is needed for his relocation, this will be handled directly between the Department and the leaseholder or tenant by execution of an agreement. Form ROW-N-19, Occupancy Agreement is available.

If an owner retains a tenant-occupied improvement, an agreement should be reached as to utility continuation and improvement removal. Delivery of the ninety-day and thirty-day relocation notices should be coordinated so that utilities will not be cut off, nor the improvement removed, before ninety days have expired.

In transmitting parcel payment submissions to the ROW Program Office in Austin, advise whether the property is owner-occupied, tenant-occupied, or vacant. If a tenant occupancy agreement has been executed, a copy must be included with the submission.

The Texas Tort Claims Act, Civil Practice and Remedies Code, §101.022, provides the nature and extent of the State's liability as to premise defects. Under this law, a distinction is made between a paying and a non-paying occupant with greater potential liability to a paying occupant. The occupancy clauses given in this section include an acknowledgment that the owner or tenant is a non-paying occupant.

In setting forth the termination time in the clause included in the memorandum of agreement or purchase agreement, the wording may be altered as follows: "not later than or as of (usually 120 days from date of deed) or 90 days from receipt of State's warrant, whichever is later, subject, however,.."

Time extensions, as provided for in the memorandum of agreement or purchase agreement, and agreements with leaseholders or tenants, should not be granted unless there are positive facts to justify such extensions. If an extension is justified and granted, this action, along with supporting reasons, must be documented in writing. No extension of occupancy right is allowed by unstated permission.

When the right of temporary occupancy terminates, a concerted effort must be made to have the occupants move, and documented in Department files. All possible means of securing peaceful possession should be exhausted before considering forceful eviction. When tenants or owners do not vacate the premises within the allowed time, forceful eviction is to be used as a last resort, and only then with prior administrative approval. Such approval must be obtained by request through the ROW Program Office in Austin. In the interim, the Department must periodically protest continued occupancy in writing and request immediate vacancy. A request for eviction proceedings should outline all the facts in the case, including the proposed construction letting date and the last possible date that the construction schedule will allow for deferral of actual eviction. Care should be used so that no job is let where there appears a possibility for eviction until the facts of the situation are made known to the Department.

The preceding paragraphs outline procedures for allowing a temporary occupancy period for the purpose of allowing time for displacee relocation. However, when compatible with construction schedules, Transportation Code, §202.058, permits TxDOT to allow extended use of land for the purposes of grazing and cultivation and is limited to the adjacent landowner.

When, in the closing of a transaction, it is desired to allow the owner or a compensable leaseholder an extended period for grazing or harvesting crops, use the same procedures for allowing temporary occupancy for relocation purposes. Modify pertinent clauses to indicate that occupancy is allowed only for the purposes of cultivating or harvesting crops. The time required for harvesting will govern the occupancy period granted.

This does not affect procedures where crops are involved or grazing privileges are allowed, when no payment is made in the right of way transaction to the individual involved. An example is a short-term leaseholder whose lease expires before the land is needed for right of way, who can harvest the crops within the lease terms. Agreements are not required in non-compensable situations. However, any privilege allowed should be thoroughly understood by the parties involved.

If abutting owners ask for grazing and cultivation privileges after closing the right of way transaction (which is also under the authority of Transportation Code, §202.058), the agreements do not require approval by the ROW Program Office in Austin, and they may be forwarded directly to the General Services Division. This applies to all transportation projects.

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Exceptions to Title

When the fee owner requests that exceptions to title be listed in the deed, TxDOT will insert a special clause of standard exceptions, which will read as follows:

“This conveyance is made by Grantors and accepted by the State of Texas subject to the following:

1. Visible and apparent easements not appearing of record.

2. Any discrepancies, conflicts, or shortages in area or boundary lines or any encroachments or any overlapping of improvements which a current survey would show.

3. Easements, restrictions, reservations, covenants, conditions, oil and gas leases, mineral severances, and encumbrances for taxes and assessments (other than liens and conveyances) presently of record in the Official Public Records of XXXXX County, Texas, that affect the property, but only to the extent that said items are still valid and in force and effect at this time.”

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