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Section 14: Instruments of Conveyance (State Participation)

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General Requirements for Proper Conveyance

Deeds, easements, and other instruments of conveyance will be prepared on ROW Division standard forms in accordance with the provisions of Standard Conveyance Forms, (see Table 3-1 below). All instruments must show the name of grantors or other parties the same as on the title report, and the cash consideration recited in the deed must be the amount of money actually paid the owner. Signatures and acknowledgments should be in exact agreement with the names of grantors or other parties appearing in the caption or the body of the instrument.

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Standard Conveyance Forms

NOTE: A major change in the standard conveyance forms was instituted in 2003 and as of the update to this Manual in April 2004, there is primarily one basic Deed form, designed to be used in all acquisition circumstances, both whole and partial acquisitions, as well as both controlled and non-controlled access highway facilities. Due to access rights being an important and valuable property interest, and due to legislation adopted in 2003, it is necessary that every deed contain a reference to the extent access is allowed or denied (even for non-controlled access highway facilities). Current law (Transportation Code § 203.003 (a)) provides that access may be controlled at specific locations on any designated State Highway (even though the specific segment of the highway facility may not itself be designated as a controlled access facility). As many existing non-controlled access highways on the State Highway System are improved, entrance and exit ramps may be designed into such older highways, and therefore some access control may be required in the vicinity of such ramps.

Surveys and property descriptions (including plat maps) being prepared for all State Highway projects are now supposed to contain within the legal descriptions and at the end of the legal description a reference to whether access is denied or permitted, and where access is denied, a control of access line (coincident with the right of way boundary line) should be shown on the parcel plat. The new deed form (ROW-N-14), references that access is governed by the provisions set out in Exhibit “A” (the parcel’s property description that is attached to the deed). Therefore, no separate reference or provisions about access is contained within the body of the deed. Therefore, the property description exhibit is very important, and needs to be reviewed carefully to determine if the access provisions, and a statement about access, has been included by the surveyor.

NOTE: For those situations where older property descriptions are being utilized which do not contain access provisions, or the surveyor has failed to include access provisions (including situations relating to a non-controlled access highway where there is no denial of access associated with a specific parcel), it may be necessary to prepare a generic access clause indicating that access is permitted, which may either be placed below the surveyor’s seal at the bottom of the property description if there is room (as part of Exhibit “A”), or if there is no room and to avoid making any type of alteration to a surveyor’s property description’s final page, the following generic access clause may be placed on a separate page (marked Exhibit “B”) to be placed behind the Exhibit “A” property description and parcel plat:

“ACCESS CLAUSE

Access will be permitted to the highway facility from the remainder of the property lying XXXXX [insert direction, i.e. “north”] of XXXXX [insert highway designation, i.e. U.S. Highway 277].”

In this case, be sure and change the “Exhibit ‘A’” that appears just prior to the “SAVE AND EXCEPT” on page 2 of the deed form, to “Exhibit ‘B’.

Where access is in fact being either fully or partially denied, and if the property description being utilized does not contain any access provisions and/or an access clause immediately following the property description, the Right of Way Division should be contacted for assistance, if necessary, in drafting an appropriate clause that describes where the access is permitted and where it is denied. Depending upon how this is described, this may require a surveyor to prepare such a clause, or possibly that the property description be amended by the original surveyor who prepared the survey.

On the interstate highway system and other controlled access highways officially designated by the Texas Transportation Commission to be developed under the provisions of Transportation Code, Chapter 203, the sample conveyance documents found in the following table are to be used in acquiring ROW.

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Form Number

Title

ROW-N-13

Release and Relinquishment of Access Rights, Controlled Access Highway Facility (No land taking, access to and from abutting property waived, released and relinquished)

ROW-N-14

Deed

ROW-N-15

Right of Way Easement (for right of way)

ROW-N-16

Right of Way Lien Release (All lien release situations)

ROW-N-17

Release of Easement (Use to acquire utility or any other existing easement interest)

ROW-N-21

Release of Mineral Surface Rights (All existing surface rights released)

ROW-N-30

Quitclaim Deed (For release of advertising sign interest(s) and other interests where quitclaim is needed to clear title)

ROW-N-31

Drainage Easement for Highway Purposes

ROW-N-83

Temporary Easement (For detour and other construction easement purposes)

ROW-N-85

Subordination of Mineral Lease (Non-Controlled Access Highway Facility)

ROW-N-271

Easement for Purpose of Producing and Hauling Materials (Borrow and base material pits)



NOTES

These standard forms have been prepared for conveyance of various property interests to the State. Use all pages of standard forms. Pages from another form should not be combined with the form being used. Each form is separate and stands on its own. Appropriate special clauses, referred to in the next subsection, may be added to the forms as necessary.

IMPORTANT: Standard State forms are not to be altered for any reason without the written consent of the ROW Division of TxDOT. All ROW deeds and forms containing modifications or clauses not contained in this Guide or the Right of Way Manual must be approved by the ROW Division in advance.

Special clauses for insertion in the certain ROW instruments to cover special conditions pertinent to a particular ROW transaction are outlined in the following Section 15, Special Clauses for Conveyance Instruments in this Guide. It is the State’s responsibility to furnish LPAs with accurate property descriptions and proper forms for deed, easements, and other instruments necessary for acquisition of each parcel. It is the LPA’s responsibility to deliver acceptable instruments, which convey valid title to the State.

In closing the transaction, the conveyance instrument should recite the actual cash consideration paid to the property owner, or in separate documentation of considerations paid to the owner. Any breakdown of the total consideration paid, which separates compensation for property acquired from compensation for damages to the owner’s remaining property, should not be documented in the deed. However, this breakdown may be documented in a separate agreement or contract of sale, as outlined in Information for Income Tax Purposes for Property Owners.

TxDOT must approve, in advance, any revision, deletion, or addition to State-approved forms necessary for special conditions. Modified instruments, even though acceptable in personal transactions, may not meet State title requirements. If all instrument revisions originate with or receive prior approval from TxDOT, it will have determined the acceptability of each instrument before its execution and recording, thereby avoiding difficulties at the reimbursement stage. If there is any question concerning the acceptability of a proposed instrument, the instrument must be submitted through the District.

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Special Warranty Deeds

A full warranty deed is preferable. However, additional text may be added to Form ROW-N-14, Deed, when the fee owner refuses to sign a full warranty deed, provided that the title company will guarantee title without an exception due to use of this added language. The additional bolded text below shall be added at the end of the following paragraph, found on the last page of Form ROW-N-14:

"TO HAVE AND TO HOLD the premises herein described and herein conveyed together with all and singular the rights and appurtenances thereto in any wise belonging unto the State of Texas and its assigns forever; and Grantors do hereby bind ourselves, our heirs, executors, administrators, successors and assigns to Warrant and Forever Defend all and singular the said premises herein conveyed unto the State of Texas and its assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under Grantors, but not otherwise."

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Possession and Use Agreement, Form ROW-N-7

ROW-N-7, Possession and Use Agreement for Transportation Purposes (PUA), can reduce delays in the negotiation process, thus allowing TxDOT to provide transportation improvements in a timely manner. This procedure allows partial payment for the parcel once the PUA is signed.

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Memorandum of Agreement (MOA)

Use of an MOA is optional when the transfer of property is simple, and specific notations, arrangements, and agreements are unnecessary to ensure property conveyance. When the transfer is not simple, or special agreements are necessary, an MOA may be used for added special provisions.

A written agreement with the property owner, executed at the conclusion of property acquisition negotiation, is preferred for documentation of all transaction terms. Execution of a written agreement documents the process of payment and transaction closing, and protects TxDOT or the LPA against false claims of non-performance.

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