Where We Stand: Eminent Domain – What We Want in a Bona Fide Offer
Your association needs your help with eminent domain reform — tell your legislators to support your private property rights.
When you defend a philosophy and try to create change for the better, there will be opposition from those who have a different philosophy and from those who like things the way they are.
Texas and Southwestern Cattle Raisers Association (TSCRA) leaders and our friends at a number of landowner groups have taken an aggressive, offensive approach to eminent domain reform in the 2017 session of the Texas Legislature. Opponents of eminent domain reform have taken note and are organizing their opposition.
Pipeline and powerline companies and cities are among our opponents and are pushing the message that eminent domain reform will increase litigation across Texas. They seem to be worried that eminent domain reform will result in more lawsuits, making trial lawyers’ dreams come true. I’m sorry to burst the dream, but our eminent domain reform goals are well-considered, reasonable and are not designed to increase lawsuits.
The eminent domain reform effort is designed to provide fairness to landowners who are at a huge disadvantage when dealing with the condemnation process.
It’s harder to play offense than it is defense. We have more than doubled our work on this issue because we are talking to legislators about supporting the change, educating them on why eminent domain reform is necessary, and answering opponents’ allegations with sound solutions and examples of real-life landowner problems. To see some of those real-life problems, just turn the page to read comments from landowners in response to our Eminent Domain Survey. Landowners face intimidation tactics by condemnors.
We need your help to get this message to the legislators. Call your state representative and state senator today and let them know you support eminent domain reform and private property rights.
We urge you to remind legislators that landowners, and not the pipeline and power line companies, voted them into office.
Let’s take a look at one of the issues we’re working on under the eminent domain reform umbrella — the bona fide offer.
Although current law requires a bona fide offer, we think it is important to better specify in statute what exactly this should include.
A true bona fide offer should require the condemning entity to provide minimum property rights protection and delineate all uses or restrictions for the condemned property. We believe terms to ensure the condemning entity will maintain the surface of the property throughout the life of the easement should also be required.
In 2011, the Texas Legislature enacted Senate Bill 18, which included a provision in Sec. 21.0111 of the Property Code that an entity with eminent domain authority that wants to acquire real property for a public use must make a “bona fide offer” to acquire the property from the property owner voluntarily.
While the provisions included under the bona fide offer section of the property code provided meaningful progress, many Texans continue to struggle to get the entity condemning their property to provide specifics on how their land will be used. This is why it’s important to provide further improvements and require entities to provide more specifics on projects to the landowner.
Making a change like this requires more than double the effort from your TSCRA leaders and staff. We are calling for twice the effort from you to accomplish reform.
Richard Thorpe, Texas and Southwestern Cattle Raisers Association president
Details to Include in a Bona Fide Offer
To better constitute a bona fide offer, we believe the deed, easement or other instrument conveying the property sought to be acquired must include:
For a pipeline right-of-way easement:
- Maximum number of pipelines
- Outside diameter of each pipeline
- Type or category of each substance to be transported
- Description of any use of surface and limitations or restrictions placed on property owners use of surface
- Metes and bounds centerline description for the width of the easement, depth of the pipeline and amount of cover
- Maximum duration of initial construction
- A prohibition from transferring the easement to any other entity, subsidiary, or company that doesn’t have the power of eminent domain
- A right to damages for construction maintenance, repair, replacement, growing crops, livestock, and or future removal of the pipeline within the easement
- A covenant to lock and close all gates and fences as to prevent damage and destruction to livestock and maintain the right-of-way
- A covenant to repair or restore areas used or damaged outside of the easement area to the original condition or better
For an electrical transmission right-of-way easement:
- The maximum number and spacing of the poles, towers or other support apparatus to carry electrical lines over the easements
- The maximum number and electrical carrying capacity of the lines to be installed within the easement
- A reasonable description of any use of the surface of the right-of-way that the condemning authority intends to acquire
- A metes and bounds or center line description of the location of the easement
- The width of the easement and a reservation of the right to grant additional easements to other parties within the easement area
- A limitation of the access to the easement area
- A right to damages of the surface of the property used
- A covenant to lock and close all gates, maintain the right-of-way and repair and restore areas used or damaged outside the easement area.