In the acquisition of right of way, the owner or tenant in possession is allowed a temporary period of occupancy if necessary for relocation purposes. Such temporary occupancy is considered a proper approach in the treatment of displaced families and businesses. Under the state's right of way acquisition program, by which property is acquired well in advance of construction needs, a short period of occupancy will not interfere with the project schedule. However, it is TxDOT's responsibility to safeguard against prolonged occupancy periods that cannot be justified by relocation needs.

Owners and tenants may be allowed a temporary right of occupancy regardless of whether the property is improved or unimproved, and if improved, regardless of whether improvements are retained by the owner or acquired by the state. When a tenant will occupy both state-owned property and retained improvements, tenant's use of retained improvements is a matter between the tenant and the owner of the improvements. The agreement with the state is applicable only to the state-owned portion of the premises. In condemnation cases, temporary occupancy should be held to an absolute minimum since condemnation is not recommended until early possession of the property is needed, and would defeat the advantages of this factor in negotiations. The occupancy agreement is not needed when complying with (in TxDOT’s

ROW Relocation Assistance Manual

). Temporary occupancy is permitted only through written agreement in accordance with the following instructions.

The agreement as to right of occupancy by an owner is set forth in the MOA as part of the right of way transaction. Where temporary occupancy by the fee owner is permitted in negotiation, the following clause will be inserted in the MOA, but is

not

to be included in the conveyance instrument:

“In consideration of the state's allowing Grantors to occupy the herein described land after its acquisition by the state, Grantors agree that such occupancy shall terminate not later than (date), subject, however, to such written extensions of times as the state may grant. Such extensions will be granted only upon a showing by Grantors of extenuating circumstances, which in the sole opinion of the state will justify such extension.

Grantors agree that such occupancy shall be for their benefit exclusively, and the Grantors acknowledge that said occupancy hereunder shall be for their sole benefit and that no payment has been made or is to be made to the state for use of said premises, and that any attempt to assign such benefit, or to lease, rent, sublet, or in any manner suffer or permit occupancy of the land or improvements thereon by a third party shall automatically suspend the operation of this provision, and the state shall then have immediate right of possession.

With respect to any improvements located upon said land, title to which is to be acquired by the state, Grantors shall make every reasonable effort to keep such improvements in good repair and shall exercise such diligence as may be necessary to protect same from damage.

Grantors acknowledge that they are occupying the premises “AS IS” with all faults. Grantors hereby waive any and all causes of action, claims, demands, damages, and liens based on any warranty, expressed or implied, including but not limited to any implied warranty of suitability for a particular purpose and any warranty of habitability. Grantors shall indemnify and hold harmless the state, its successors or assigns, and its agents, representatives and employees (“Indemnified Parties”), against any and all proceedings, suits, actions, claims, damages, judgments, liabilities, awards, and expenses whatsoever (“Claims”) which may be brought or instituted on account of or growing out of any and all injuries or damages, including death, to persons or property relating to any occurrence in, upon, at, or from the said premises or any part thereof, and all losses thereto, including but not limited to, all costs of defending against, investigating, and settling the Claims.

Grantors agree that the state's employees or agents may make inspections of the premises from time to time, and that the state will be notified at the time Grantors vacate the premises.”

If the fee owner does not occupy the premises, no right of occupancy will be granted him in the right of way transaction. However, if the premises are occupied by a leaseholder or a tenant on a month to month basis, and a short period of time is needed for their relocation, this will be handled directly between ROW PD and the leaseholder or tenant by execution of an agreement. Form is available.

If an owner retains a tenant-occupied improvement, an agreement should be reached as to utility continuation and improvement removal. Delivery of the ninety-day and thirty-day relocation notices should be coordinated so that utilities will not be cut off, nor the improvement removed, before ninety days have expired.

In transmitting parcel payment submissions to the ROW Program Office, advise whether the property is owner-occupied, tenant-occupied, or vacant. If a tenant occupancy agreement has been executed, a copy must be included with the submission.

The

Texas Tort Claims Act,

, provides the nature and extent of the state's liability as to premise defects. Under this law, a distinction is made between a paying and a non-paying occupant with greater potential liability to a paying occupant. The occupancy clauses given in this section include an acknowledgment that the owner or tenant is a non-paying occupant.

In setting forth the termination time in the clause included in the MOA, the wording may be altered as follows: “not later than or as of (usually 120 days from date of deed) or 90 days from receipt of state's warrant, whichever is later, subject, however,..”

Time extensions, as provided for in the MOA, and agreements with leaseholders or tenants, should not be granted unless there are positive facts to justify such extensions. If an extension is justified and granted, this action, along with supporting reasons, must be documented in writing. No extension of occupancy right is allowed by unstated permission.

When the right of temporary occupancy terminates, a concerted effort must be made to have the occupants move, and documented in ROW PD files. All possible means of securing peaceful possession should be exhausted before considering forceful eviction. When tenants or owners do not vacate the premises within the allowed time, forceful eviction is to be used as a last resort, and only then with prior administrative approval. Such approval must be obtained by request through the ROW Program Office. In the interim, ROW PD must periodically protest continued occupancy in writing and request immediate vacancy. A request for should outline all the facts in the case, including the proposed construction letting date and the last possible date that the construction schedule will allow for deferral of actual eviction. Care should be used so that no job is let where there appears a possibility for eviction until the facts of the situation are made known to TxDOT.

The preceding paragraphs outline procedures for allowing a temporary occupancy period for the purpose of allowing time for displacee relocation. However, when compatible with construction schedules, permits TxDOT to allow extended use of land for the purposes of grazing and cultivation and is limited to the adjacent landowner.

When, in the closing of a transaction, it is desired to allow the owner or a compensable leaseholder an extended period for grazing or harvesting crops, use the same procedures for allowing temporary occupancy for relocation purposes. Modify pertinent clauses to indicate that occupancy is allowed only for the purposes of cultivating or harvesting crops. The time required for harvesting will govern the occupancy period granted.

This does not affect procedures where crops are involved or grazing privileges are allowed, when no payment is made in the right of way transaction to the individual involved. An example is a short-term leaseholder whose lease expires before the land is needed for right of way, who can harvest the crops within the lease terms. Agreements are not required in non-compensable situations. However, any privilege allowed should be thoroughly understood by the parties involved.

If abutting owners ask for grazing and cultivation privileges after closing the right of way transaction (which is also under the authority of ), the agreements do not require approval by the ROW Program Office, and they may be forwarded directly to the Support Services Division (reference TxDOT’s

Use of Right of Way by Others Manual

). This applies to all transportation projects.