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 should 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.

When title insurance is obtained, agreements provide that the state's payment warrant for the consideration shown in the deed will be made out jointly to the owners of the property and to the state's closing agent, and that the warrant will be delivered to the state's closing agent. The state recognizes only the underwriter as closing agent. Where the underwriter, by its own election, functions through an authorized representative acting as an agent, the state recognizes this agent only with respect to the underwriter. Any action by this agent must be in the capacity as agent for the underwriter.

When title insurance is not obtained, the property owner must state in the agreement that he accepts disbursement of a portion of the consideration shown in the deed for payment of any outstanding encumbrances. This statement provides that in consideration of the state independently discharging obligations of the encumbrances, as provided for in the releases; for making payment of any required taxes; and for paying the balance to the owner, the obligation shown in the deed and pertinent agreement is completely fulfilled.

In

rare

instances, the property owner may be willing to negotiate and execute a conveyance instrument but be unwilling to sign an agreement. When this occurs, write a letter to the owner setting forth the complete content normally embodied in the MOA, and advising him that by signing the state warrant he accepts all details of the transaction. One copy of this letter should be submitted with the payment submission.

The five Memorandum of Agreement forms provide the normal method of outlining all terms of a right of way transaction. These forms are used except where any of the Purchase Agreements, form , form ; and form are used, and are designed for specific needs as follows: