Section 3: Attorney's Certificates and Their UsageAnchor: #i999253
Based upon the title search, the staff attorney will execute a certificate to establish the owners of the subject property and determine all outstanding encumbrances and claims against the property, including all taxes due as of the date of the certificate.
The attorney should pay particular attention to adverse possessors. The attorney should certify those persons claiming adverse possession of the property. The certificate must state if there are no adverse possessors. All encumbrances will be listed on the certificate with a brief description covering the nature and extent of each claim of interest along with the appropriate recording information as shown in the county real property records. The attorney may add to the certificate the standard exception to survey that is accepted on title policies. Since the Attorney's Certificates will be prepared by the Department as necessary, additional space for particular items may be inserted to suit individual needs.
On negotiated parcels, the staff attorney will execute the initial certificate on Form ROW-N-ACA, Attorney's Certificate "A", Initial Certificate for Negotiated Parcels On this form there are certain requirements for filling in the spaces provided for owners and claimants. These requirements can be met in the following manner:
- Indicate the marital status of each individual. If the grantor is single, the phrase "a single man (woman)" will suffice. If a husband and wife are to be listed, they must be identified as such; e.g. , "John Doe, et ux, Mary Doe. "
- If the property is owned separately by either a husband or wife and only one person is to be shown on the certificate, then following that person's name use the phrase "separately owned property of husband (wife). "
- If the property is non-homestead and is to be conveyed by one spouse alone, then following the name on the certificate use the phrase "non-homestead property. "
- If a person listed is acting in the legal capacity of another (such as trustee, guardian, or attorney-in-fact), the legal capacity of the person must be stated. If such person is also acting in an individual capacity, then both his or her marital status and legal capacity must be shown.
- If abbreviations are necessary, only those commonly recognized or legal (Latin) terms may be used.
If the certificate shows claims of adverse possession, or outstanding encumbrances, releases covering all of these claims must be obtained. Taxes will be handled as described in Current and Delinquent Taxes. The MOA will include a written statement from the property owner agreeing to the disbursement of funds out of the consideration due the property owner to satisfy the outstanding encumbrances. Form 132 or ROW-A-15, Payment Request, as appropriate, submission will include three copies of the attorney's initial certificate on Attorney's Certificate "A." If, in compliance with the MOA, the State's warrant(s) is not to be made payable to all owners and claimants listed on Attorney's Certificate "A," it will be necessary to modify the MOA by adding the following:
"and that payment to will constitute full and complete discharge of TxDOT's obligation for the payment of the purchase price. "
In cases involving advertising signs owned by anyone other than the fee owner or lessee in possession of the property, the interest will be listed on the Attorney's Certificate as "leasehold." A separate MOA and Form 132 or ROW-A-15, Payment Request, as appropriate, covering the sign interest is required.
If it is determined that the parcel cannot be negotiated, complete the usual requirements for ED proceedings. See TxDOT Policies and Procedures in Acquisition By ED in TxDOT’s Right of Way Manual Vol. 4 - Eminent Domain. Include two copies of Attorney's Certificate "A" in the submission to the ROW Program Office in Austin. The ROW Program Office in Austin will send this certificate to OAG for use in preparing and filing the petition with the court having jurisdiction over the ED proceedings. This petition will be furnished to the Department and to the ROW Program Office.
Use Form, ROW-N-ACB, Attorney's Certificate "B", Initial Certificate for Condemned Parcels for Payment of Commissioners' Awards when obtaining a warrant for an award deposit before a final judgment is rendered. Submit three copies of the certificate to the ROW Program Office in Austin along with the Form 132 or ROW-A-15, Payment Request, as appropriate, requesting a warrant in the amount of the award. This form is for use in cases where either a single property interest or all property interests are being condemned. For example, if a leaseholder refuses to negotiate, but the fee owner is willing to negotiate, then the interest of the leaseholder will be reported by using this form, while at the same time the interest of the fee owner will be reported by using Attorney's Certificate "A. "
Use ROW-N-ACC Attorney’s Certificate “C” in obtaining a warrant for the payment of a final judgment. Three copies of this certificate must be submitted along with the Form 132 or ROW-A-15, Payment Request, as appropriate, requesting a warrant in the amount of the final judgment.
After acquiring title, either through negotiation or by condemnation, the attorney will execute the final title certificate on Form ROW-N-ACE, Attorney's Certificate "E", Closing Certificate (for State) Acquisition Executing this certificate will prove that funds have been disbursed and that title is now in the name of the State of Texas.
If an easement or leasehold interest overlooked in the original acquisition must be extinguished or subordinated, use a modified Attorney's Certificate, Form ROW-N-ACX1. The modified certificate may also be used for incompatible interests located on property subject to joint usage.
Another sample certificate which may be used is the Form ROW-N-ACX2, Attorney's Certificate for State Acquisition Projects for Extinguishing or Subordinating an Overlooked Leasehold or Easement Interest.