Chapter 6: Right of Way Donations and ExchangesAnchor: #i1000173
Section 1: OverviewAnchor: #i1000178
A property owner may donate all the needed 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 in writing of its right to receive just compensation. The 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.
A property owner may donate property in exchange for construction features or services. Such agreements must be coordinated with the Contract Services Division. The value of the donation is limited to the fair market value of property donated less the cost of the construction features or services. If the value of the donated property exceeds the cost of the construction features or services, the difference may be eligible for a federal credit to the State's share of project costs.
Government Code, Chapter 575 requires that 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 legal description of the property, and a statement regarding the purpose of the donation. The legal description of the property must be signed and sealed by a Registered Professional Land Surveyor (RPLS) and include a parcel plat. 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 contained in 43 TAC Sections 1.500-1.506. The donor and TxDOT must execute a donation agreement signed by the Executive Director or ROW Division Director for any donation of 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. ROW PD 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). ROW PD will forward the proposed donations to the ROW Program Office for submittal of all applicable donations to the Executive Director or ROW Division Director for acceptance and execution of 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).
ROW PD files must be thoroughly documented when right of way is obtained by 100% donation (full donation) or by reduced consideration (partial donation). A written statement from the donor, or an appropriately modified Memorandum of Agreement (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 their 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, ROW PD must set forth TxDOT's other obligations (e.g., title expense, relocation assistance, incidental expenses, etc.) in writing. A modified agreement is not required, but may be used to clearly set forth the obligations of both TxDOT and the other parties involved.
When TxDOT directly obtains right of way by donation, use form ROW-N-14 Deed as the deed form. This form permits the owner to retain improvements and contains 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, 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 in unusual circumstances when real property improvements or fixtures will have to be removed by the owner or by others. A donation of a temporary easement would 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 is not utilized, or if there is a situation which warrants exceptional handling, ROW PD must coordinate with the ROW Program Office.
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 requirements of documentation and executed agreement are met. The documents should be acknowledged by a notary public 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 TxDOT 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.