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Section 3: Section II of Form ROW-E-49

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Holders of Property Interests to be Joined as Parties

Holders of Property Interests to be Joined as Parties include fee owners , adverse claimants , lienholders , easement holders , lessees and tenants , and owners of minerals and mineral leases.

Since pleadings are prepared from information furnished in this section, give specific and complete names and service of process address of all persons or entities that are parties.

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Fee Owners to be Joined

Additional information is given in the Eminent Domain Guide, In Submitting a ROW-E-49.

Show names of fee owners as they appear on the deed or probate document that gives them title to the property being condemned, which are the same as shown on the Title Commitment or on the Attorney's Certificate. These names should be the same as on the final offer letter. Minor variation in name(s) on the final offer letter is acceptable if it is clearly the same person and, if married, the spouse was included.

Occasionally, owners may use more than one name. This may be shown as in the following example:

  • Nelly Bly, also known as Nellie Jane Bly, or
  • John B. Brown, being one and the same person referred to in certain instruments of record as J. Bruce Brown or as J. B. Brown. Show marital status of each individual specifically as "a single man," "a femme sole" or "a widow." Show the full name of the spouse of any married owner. List a wife by her given married name, such as:
  • John J. Andrews and Mary Alice Andrews, husband and wife

When one party owns the property as his separate property, it is possible that the spouse may have a homestead interest. The spouse of any fee owner must always be named as a party, even when one party owns the property as his separate property.

Give addresses of owners by house number and street name rather than post office box number so that service of citation can be made. For rural residents, most areas are covered by the 911 emergency system, and most rural streets are named. The county in which the party resides and directions by local landmarks is acceptable. Make all addresses as complete as possible. If the address on the final offer letter differs from the one shown on the ROW-E-49, include an explanation about this difference in the "Remarks" section.

The department should advise if an estate is in the process of administration (or if probate proceedings are pending) when the property interest is submitted to the ROW program office in Austin. Show the names and addresses of the administrator (appointed by the court) or executor under a will that has been admitted to probate, and all heirs and devisees having an interest in the property. Attach copies of probate documents to the form if the department has questions about them.

State when a minor or legally declared incompetent person owns an interest or estate in the land. Also, state the name and address of any legal guardian of the person and estate. State if there is no legal guardian, since OAG includes documents to engage an Attorney Ad Litem (or a Guardian Ad Litem) when filing the proceedings.

If ownership is in a corporation, partnership, or in a form beside individual persons, then show the exact name and type (e.g., "a corporation" or "a partnership"). Give the name, title and address of the person(s) authorized to accept service of citation, which would be the registered agent for service as listed in the records of the Office of Secretary of State (SOS). Note that if there is a registered agent of record, that person should be served. For example:

Acme Processing Company, a Corporation

432 South Congress Avenue

Austin, Texas 78787

Louis A. Boyd, Registered Agent for Service

1237 Crescent Street

Austin, Texas 78787

NOTE: If you cannot contact this person, contact the ROW program office in Austin for assistance.

A party may be listed, usually a tenant, using a "Doing Business As" (DBA) name. These listings may or may not say DBA. Show a party as a DBA if (1) the name does not show that it is a company, corporation, or a partnership, and (2) it can not be identified through the SOS as a corporation or a limited partnership. Clearly show on Form ROW-E-49 that the individual will be served in the individual's own name. For example:

John Doe DBA Acme Rental

12345 Main Street

Austin, Texas 78787

Verify the following information with the SOS:

  • the name and address of a corporation/limited partnership
  • the status of the corporation/limited partnership
  • the name and address of a registered agent for service of a corporation/limited partnership
  • the name and address of an entity operating under an assumed name. This information is also available through direct access with the SOS, and through Internet subscription accounts.

Information on service of citation to banks and governmental bodies is given in the Eminent Domain Guide, Form ROW-E-49 Preparation Hints.

If the owner is a general partnership, obtain a copy of the partnership agreement to determine if there is a managing partner who is designated to receive service. Note that general partnerships are not listed with the SOS.

If (1) a copy of a partnership agreement can not be obtained and (2) title to the property is held in a specific partnership name, then serve one of the general partners. All of the general partners do not need to be served unless the title is held in each partner's name and in the partnership.

Clearly show whether any of the owners are unknown or can not be located since OAG includes documents to secure citation by publication. When proceedings are filed, a department representative signs an Affidavit for Citation by Publication. This affidavit states that the owners, or their location, are still unknown after a diligent search. Refer to Final Offers to Unknown or Unlocated Owners for locating owners.

TxDOT personnel can not make service of citation by publication and administer the return, since legally this can only be done by the county sheriff or a constable in the county in which the property interest is located. TxDOT personnel may assist the sheriff or constable by arranging for the publication, scheduling the timing with the newspaper, and picking up the newspaper clippings and the affidavit of the publisher for delivery to the sheriff or constable for administering the return. Additional instructions for citation by publication is in the Eminent Domain Guide, Special Situations, Citation by Publication.

When a sign or billboard belongs to the fee owner, make note in the "Remarks" section.

If any person or entity to be joined is in bankruptcy, then state this in the Remarks section. Additional information required is listed on the Bankruptcy Checklist in the Eminent Domain Guide. An Order to Lift Stay should be obtained before proceeding with the condemnation suit. OAG should provide assistance on how to proceed, and will prepare additional court documents that must be filed with the bankruptcy court.

For service of process and notices on someone other than the named property owner(s), TxDOT must receive either (1) preferably, a power of attorney instrument specifically authorizing the acceptance of service of process by the attorney in fact, or (2) a letter from the party asking that TxDOT make service of process to their attorney and their designated agent for service of process.

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Adverse Claimants to be Joined

In this section, include information concerning anyone claiming to have interest in the property whose claim is adverse or contrary to the record owner. The adverse claimant's alleged interest may or may not be of record. Examples include persons claiming adverse possession, persons claiming an interest from another chain of title, and persons claiming to be heirs of former owners. Show the adverse claimant in this section without regard to the validity of the claim.

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Lienholders to be Joined

Give current information concerning proper identification, names, addresses, nature of organization and agents for service of citation as shown in Section II A, Fee Owners to be Joined, of this form. List the current holder of the lien. When an entire lien has been transferred and/or assigned to someone else, the original parties do not need to be listed; instead, list only the current holder.

When possible, obtain a copy of each lien document from the title company. Copies of liens help in determining if they are barred by any statute of limitations.

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Easement Holders to be Joined

State the name of each easement holder and the nature and terms of each easement. Section II A, Fee Owners to be Joined, of this form apply in giving proper identification and addresses of easement holders.

If an easement or restriction (enforceable against a condemning authority) is created by an instrument of record, then give the type and date of such instrument and pertinent recording data.

If a private roadway or a public or private utility facility is discovered on a property (and is not of record), then the department should investigate. Report any information on the nature of the interest, area involved, and circumstances or history leading to the placing of the roadway or facility on the property.

Some public utility and public roadway easements that are compatible with highway design and operation may remain in the ROW. Other public utility adjustments should be made under the Utility Accommodation Policy and do not need to be joined as a party to the proceedings. The department determines which public easements and public utilities qualify under these categories. If easements or utilities qualify, then list them under Section III of Form ROW-E-49 (Holders of Property Interests Not To Be Joined as Parties ).

If (1) specific utility easements are shown on a plat of the property by page and volume number and (2) these easements are not listed on the title commitment, then obtain copies from county records. After the department determines the easements' compatibility (or adjustment qualifications), list the easements in the appropriate section, either as parties to be joined or as parties not to be joined.

Reciprocal parking and/or ingress-egress easements may exist within protective covenants or restrictions, or they may stand alone; therefore, read the covenants or restrictions very carefully and advise on ROW-E-49 if these easements exists. These agreements usually exist in shopping centers and malls. List current holders of these rights as parties to be joined.

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Lessees and Tenants to be joined

List names and addresses of lessees as described in Section II A, Fee Owners to be Joined, if they are necessary parties. Also, describe in detail the nature and terms of the lease.

Normally, a month-to-month "renter" does not need to be made party to the proceedings since either party can cancel the renter's interest at thirty (30) day intervals. List the renter in Section III, Holders of Property Interests Not To Be Joined as Parties . Also see the Eminent Domain Guide, "Form ROW-E-49 Preparation."

Many leases are not recorded. When a lease is not recorded or is oral, provide (1) the nature, terms and conditions, and parties to the agreement and (2) other pertinent, available information. If on-site visits or photographs reveal that tenants exist (e.g., tenants in strip shopping centers), then investigate and determine if (1) a lease exists and (2) show necessary parties.

Treat advertising signs or billboards determined to represent compensable interests (but not acquired through negotiation), as leases unless owned by the fee owner of the property interest. If a sign is illegal, then a sign interest may not need to be addressed. The department determines if there is a lease and then addresses the lease.

When property is not under lease, list it as "none" in this section.

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Owners of Minerals, Mineral Leases to be Joined

On whole takings, review each document creating a mineral estate to determine if the mineral estate is larger than the parcel making up the whole taking. Determine if there is current mineral production near the take area or if there are production facilities, flow lines, or other improvements within the take area. If either condition exists, list the parties to be joined in this section.

List the parties in Section III, Holders of Property Interests Not To Be Joined as Parties (also see Eminent Domain Guide, "Form ROW-E-49 Preparation:

  • for partial takings or royalty interests, or
  • on whole takings where anti-drilling ordinances are in effect, or
  • where the whole mineral estate is not taken and no production or production facilities are within the taking.
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