Chapter 6: Right of Way Donations and Exchanges

Section 1: Overview

Anchor: #i1000178

For State

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, 1999, that the Texas Transportation Commission (the Commission) acknowledge, in an open meeting, the acceptance of any donation that has a value of $500 or more within 90 days of such acceptance. The minute order acknowledging 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 accept and approve all donations. No minute order acknowledging the acceptance of a donation is needed for a donation valued at less than $500.

The Commission has adopted rules for each donation of real property. The donor and TxDOT must execute a donation agreement signed by the Executive Director or designee for any donation of real property. 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 acceptance by the Executive Director. However, as explained in the agreement, official acceptance of delivery of the deed will not occur until the Executive Director, or designee, executes the agreement. Therefore, the deed must not be recorded until after acceptance and 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 Executive Director for action. The Executive Director, or his designee, will accept and execute the agreement. Thereafter, the deed will be deemed "delivered" and can be recorded. The Commission will acknowledge the acceptance by minute order, no later than the 90th day after the date the gift is accepted. The procedures for acceptance of donations are provided in Procedures for Receiving Donations (for State) or in 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 permits 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 such as 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. In such a situation, the donation of a temporary easement should be accomplished 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.

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