Texas Central Partners (“TCP”) is in the process of requesting permission to survey properties potentially impacted by the proposed Dallas – Houston high-speed rail project. The request for survey permission is often the first time a landowner becomes aware they own property on a proposed route for a public improvement project.
The most common question landowners’ raise is “do they have to grant permission to survey?”
The answer is – no.
You are not obligated to grant permission to survey your property and TCP has a place for you to check “survey permission denied.” If denied, and if TCP has the power of eminent domain, they will have to seek court approval to survey through an injunction process. Courts typically grant an injunction to survey. The injunction process is expensive and does cause delay; thus, it is used as a last resort by condemning authorities.
Another common question is “will they pay me for the permission to survey?”
The answer is – not likely.
Condemning authorities on large projects with lots of right of way are concerned that agreeing to pay one landowner will open them up to paying others on the route. Therefore, they can justify the expense of seeking an injunction against those few landowners that hold out as opposed to paying everyone down the line. If you are willing to grant permission to survey, there are several issues to consider before signing and returning the form. The terms and conditions are negotiable. You do not have to agree to TCP’s form.
If you are willing to grant permission to survey, there are several issues to consider before signing and returning the form. The terms and conditions are negotiable. You do not have to agree to TCP’s form. Consider terms and conditions that narrow the scope of the survey permission. In our landowner cases, we typically include terms and conditions to address the following issues:
(1) A termination date.
(2) Advance notification prior to entering property and notification when surveying activities have been completed.
(3) Defined entry and exit points.
(4) No trimming or removal of trees or vegetation.
(5) Foot traffic or ATVs only.
(6) No ribbons, stakes or markings left on property.
(7) No soil disturbing activities such as boring or invasive testing without prior written approval.
(8) If invasive testing authorized, must specify scope, depth and equipment to be used and requirement to return property original or better condition.
(9) An acknowledgment of the presence of livestock and assumption of liability for any loss or damage to livestock, if present.
(10) Hold harmless and indemnity clauses.
(11) A request to provide copies of the survey and results of any testing (if desired).
This list of issues is intended to provide some general guidance on issues to consider before granting permission to survey. There are others and each permission form should be tailored to each landowner-specific concerns as well as the unique characteristics of each property; in particular, whether the property is owner-occupied, vacant, presence of livestock, crops, wetlands, erosion issues, gates, and fences.