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Section 14: Policy on “Uneconomic Remainders” (Excess Takings) (for LPA)

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TxDOT will not participate in acquiring property in excess of right of way required for the project, unless a parcel is being acquired in the name of the state, and has been approved by TxDOT’s ROW Division Director for acquisition as an uneconomic remainder. The LPA, however, may choose to acquire a whole property when only a portion of the property is in the required right of way. In this case, TxDOT's reimbursement is based only on the predetermined value of the portion required for right of way purposes, plus damages to the remainder. In no case will this amount exceed the total paid by the LPA. For excess takings, title will be vested in TxDOT only for the parcel required for right of way purposes.

In condemnation cases, the LPA may condemn, in its own name, the entire property instead of acquiring only the portion required for the right of way. In this instance, the cost recited in the deed from the LPA to TxDOT will be a proportionate amount. Compute this proportion of the final judgment amount based on the relationship of TxDOT's approved value to TxDOT's predetermined value for the whole property. For example, if the approved value for right of way required for the project is $6,000, and the value of the whole property based on appraisals is $10,000, TxDOT's 90-percent participation would be applied to 60% of the final judgment amount. The consideration shown in the deed should be the actual amount reimbursed the LPA.

TxDOT's participation in court costs, costs of Commissioners' Hearings, and other eligible costs of ED proceedings will not be prorated but will be as customary when no excess taking is involved.

If the LPA negotiates title to the entire property, TxDOT's participation is limited to approved costs for the portion of right of way actually required. For example, assume that the LPA paid $16,000 for the whole parcel and the cost of the part conveyed to the state, plus damages, amounted to $10,000. The consideration shown in the deed should read: “90% reimbursement of grantor's cost of $10,000 or value of hereinafter described property under terms of contract.”

If an excess taking involves an improvement bisected by the right of way line and not retained by the property owner, TxDOT reimbursement for the improvement depends on the LPA conveying title to TxDOT for the improvement and for the tract of land needed for right of way purposes. The deed from the LPA must include the approved proper clause for conveyance of Bisected Improvements. TxDOT then sells the improvement through the General Services Division and gives the LPA appropriate credit.

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