When a bisected improvement is classified as “Category I” and is to be acquired in whole by the state, or retained in whole by the owner, clauses for the following situations are used:

If the state acquires title to the whole improvement, the following clause is inserted in the MOA

and

deed:

“And for the same consideration described above, and upon the same conditions, Grantors do hereby bargain, sell, and convey unto the State of Texas that portion of the following improvement(s) located on the remaining property out of which the above-described premises were originally a portion, to wit:(Describe bisected improvement(s) such as (1) two-story, brick residence, (2) two-car frame garage, (3) 20' by 30' frame tool shed, etc. )”

Immediately following such clause in the

agreement

, the following clause is inserted:

“Grantors understand and agree that it will be necessary for the state to enter upon their remaining property out of which the above-described property was conveyed for the purpose of removing that portion of the above-described improvement(s) which is located on such Grantors' remaining property. Grantors hereby authorize the state, its agents or assigns, to enter upon such remaining property for the purpose of removing said improvement(s) and expressly waive all damages or claims that may result to the remaining property of the Grantors as a result of such entry and removal of said improvement(s).”

If the owner retains the whole improvement, the following clauses are inserted in the MOA

and

deed:

“It is understood that Grantors are retaining title to the following listed bisected improvement(s): (Describe bisected improvement(s) such as (1) three bedroom brick residence, (2) 50' by 100' barn, etc.)

Such improvement(s) shall be removed from the premises hereby conveyed by the Grantors on or before the XXth day of XXXX, 20XX, subject, however, to such extensions of time as may be granted by the state in writing, but in the event Grantors fail for any reason to remove said improvement(s) within the time herein provided for, title to said improvement(s) including the portion or portions thereof located on the Grantors' remaining property, shall immediately vest in the State of Texas, all for the same consideration recited.

It is further understood and agreed that in the event title to said improvement(s) vests in the State of Texas under the provisions of the paragraph next above, Grantors authorize the state, its agents or assigns, to enter upon their remaining property for the purpose of removing said bisected improvement(s), and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors as a result of such entry and removal of said improvement(s).”

When a bisected improvement is classified as “Category II” and is not acquired in whole by the state, the following clauses are used:

If the owner retains that portion of the improvement lying within the taking, the following clause is inserted in the deed

and

MOA:

“It is understood that Grantors are retaining title to the following listed bisected improvement(s):(Describe bisected improvement(s) such as (1) three bedroom brick residence, (2) 50' x 100' barn, etc.)

Such improvements shall be removed from the premises hereby conveyed by Grantors at their own expense on or before the XXth day of XXXX, 20XX, subject, however, to such extensions of time as may be granted by the state in writing, but in the event Grantors fail for any reason to remove said improvement(s) within the time herein provided for, title to that portion of said improvement(s) located upon the premises hereby conveyed shall immediately vest in the State of Texas, all for the same consideration herein above recited.”

Immediately following such clause, the following clause will be added in the MOA but

not

the deed:

“Grantors specifically understand and agree that in the event title to the aforesaid portion of the bisected improvement(s) passes to the state, the state will cut said bisected improvements at the line of bisection and remove said portion of the bisected improvement(s) from the above-described property, and Grantors hereby authorize the state, its agents or assigns, to make such cut(s) and additionally, Grantors hereby authorize the state, its agents or assigns, to enter upon the Grantor’s remaining property (out of which the above-described property was conveyed), for the purpose of making such cuts and removing said improvement(s) and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors or damages that may result to the remainder of said improvement(s) by reason of said entry, cutting, and removal of said improvement(s).”

If the state acquires title to the part of the improvement located within the right of way limits and the improvement will be cut, no reference to the improvement will be made in the deed, but the following clause will be used

in the MOA

:

“It is further understood and agreed that Grantors will cut at the line of bisection the bisected improvement(s) located on the above-described property on or before XXth day of XXXX, 20XX.

It is further understood and agreed that in the event Grantors fail to cut the aforesaid bisected improvement(s) in the time allowed, the state will cut said bisected improvements at the line of bisection and remove said portion of the bisected improvement(s) from the above-described property, and Grantors hereby authorize the state, its agents or assigns, to make such cut(s) and additionally, Grantors hereby authorize the state, its agents or assigns, to enter upon the Grantor’s remaining property (out of which the above-described property was conveyed), for the purpose of making such cuts and removing said improvement(s) and Grantors expressly waive all damages or claims that may result to the remaining property of the Grantors or damages that may result to the remainder of said improvement(s) by reason of said entry, cutting, and removal of said improvement(s).”

The state may acquire title to the entire improvement at the owner's request, when the owner contends the improvement remainder is of no use to him. However, payment cannot exceed the value of the part of the improvement taken, plus damage to the remainder. The state's taking of the whole improvement can benefit both the owner and the state in that the improvement remainder is cleared from the property owner's land at no cost to the owner.

When this procedure is followed, the property owner should permit the state sufficient time to clear improvements from the remaining land. The MOA must include the two clauses in preceding paragraph for Category I improvements and the deed must include the first clause.

If settlement cannot be reached by negotiation, and eminent domain proceedings become necessary, furnish the Office of Attorney General (OAG) with TxDOT's findings as to whether the bisected improvements fall into Category I or II, so that appropriate special pleadings may be made.

If a bisection clause is warranted, it should be included as part of the proposed deed, easement or other conveyance instrument that is transmitted to the landowner as part of the initial and final offers. Once a parcel has been identified as containing a bi-section, the appropriately designated, applicable bisection clause should appear at the end of the property description every time that property description is used.