Chapter 6: Right of Way Donations and ExchangesAnchor: #i1000173
Section 1: OverviewAnchor: #i1000178
Either before or after TxDOT's offer to acquire right of way, a property owner can donate right of way or any part thereof, or agree to accept a payment that is less than what TxDOT offered. TxDOT can accept the donation if the owner has been fully informed of his right to receive just compensation. The value of the real property to be acquired must be appraised unless the owner releases TxDOT from this obligation. A release of the appraisal obligation must be signed by the owner and retained in the parcel file.
Government Code, Chapter 575 requires, as of September 1, 1997, that the Texas Transportation Commission (the Commission) approve, in open meeting, the acceptance of any donation of $500 or more, or property with a value of $500 or more. The minute order approving the acceptance of the donation must include the name of the donor, a description of the property, and a statement regarding the purpose of the donation. The description of the property must include a parcel plat cross referenced with the legal description. The Executive Director or designee will approve donations valued at less than $500. No minute order is needed in this situation.
The Commission has adopted rules for each donation having a value in excess of $250.00. The donor and TxDOT must execute a donation agreement signed by the Executive Director for any donation in excess of $250.00. Use Form ROW-N-143, Donation Agreement , or Form ROW-N-145, Partial Donation Agreement for this purpose.
Commission rules also require that a deed conveying any interest in real property to TxDOT be recorded and retained by the ROW Program Office in Austin. The Department will obtain an agreement and a deed executed by the donor before submission to the Commission or approval by the Executive Director, whichever is appropriate. However, as explained in the agreement, official acceptance of delivery of the deed will not occur until the Commission approves the donation, if required, and TxDOT executes the agreement. Therefore, the deed must not be recorded until after Commission action and/or TxDOT execution of the agreement. The legal requirements for acceptance of donations are provided in Legal Requirements to Accept Donation (for State). The Department will be required to submit data on proposed donations to the ROW Program Office in Austin so that the ROW Program Office can submit all applicable donations to the Commission for action. The minute order will authorize the donation and direct the Executive Director to enter into agreement for conveyance of the donated property. The Executive Director, or his designee, will execute the agreement. Thereafter, the deed will be deemed "delivered" and can be recorded. The procedures for acceptance of donations are provided in Procedures for Receiving Donations (for State) or for Procedures for Receiving Donations (for LPA).
Department files must be thoroughly documented regarding supporting circumstances when right of way is acquired by 100% donation (full donation) or by reduced consideration (partial donation). A written statement from the donor, or an appropriately modified MOA indicating full or partial donation, along with the negotiator's written reports, may constitute sufficient documentation. Whichever method of documentation is used, the offer to donate must include a statement of owner's wish to donate or accept reduced consideration and acknowledgment of his right to receive just compensation.
If a written statement indicating a desire to donate right of way is received from the property owner before appraisal of the property, it is not necessary to appraise, unless the property owner desires the appraisal to be made. However, the Department must set forth TxDOT's other obligations (e. g. , title expense, relocation assistance, incidental expenses, etc. ) in writing even if a modified agreement is not used. A modified agreement is not required, but it may be used to clearly set forth the obligations of both TxDOT and the other parties involved.
When TxDOT directly acquires right of way and all the land in a partial taking is to be donated on a controlled or non-controlled access highway facilities, use Form ROW-N-14, Deed, as the deed form. This form permit the owner to retain improvements and contain standard mineral reservation clauses.
Use standard deed forms when partial donations are to be made. Any substantive alteration of the language of standard deed forms must receive prior approval of the ROW Program Office in Austin, as set forth in Standard Conveyance Forms.
Include ethnic coding on the transmittal cover to identify the donor, according to codes shown in Ethnic Coding for ROW-A-15, Payment Request.
In most cases, when temporary use of the land is needed for highway construction purposes and the owner is willing to donate such temporary usage, Form ROW-N-TCL, Temporary Construction License Agreement, can be used.
Form ROW-N-83, Temporary Easement, however, should be used only in unusual circumstances when there are real property improvements or fixtures that will have to be removed by the owner or by others. A donation of a temporary easement would in effect convey a valid real property interest and is therefore subject to the donation provisions of State and Federal law and TxDOT policy. The donation of a temporary easement would be by the use of a fully executed Form ROW-N-83, Temporary Easement or similar agreement.
If the Form ROW-N-TCL, Temporary Construction License Agreement, or the standard temporary easement form are not utilized, or if there is a situation which warrants exceptional handling, the Department must coordinate with the ROW Program Office in Austin.
If an owner desires to donate a temporary construction license and/or easement but does not want the instrument recorded, this will be acceptable provided that all of the foregoing requirements of documentation and executed agreement are met. The documents should be acknowledged in case recordation becomes necessary. Upon completion of construction, return the original unrecorded instrument to the owner and retain a copy in TxDOT records.
When contracts are let for off-system work, the agency responsible for acquiring right of way must comply with this policy, except that title is to be taken in the name of the appropriate LPA.
If the Department suspects that the property proposed to be donated could be contaminated, a right of entry from the owner should be obtained in order for TxDOT to investigate the presence of any contaminants.