Federal regulations at 49 CFR 24.102(f) Basic negotiation procedures state, “An agency is required to make all reasonable efforts to contact the owner or the owner’s representative and discuss its offer to purchase the property, including the basis for the offer of just compensation.” Section 24.102(f), Appendix A also states, “An offer should be adequately presented to an owner, and the owner should be properly informed. Personal, face-to-face contact should take place, if feasible, but this section does not require such contact in all cases.” This language indicates the intention that an agency representative should personally deliver the offer to purchase. During the Working Group phase of this study, the Team agreed that personal contact facilitates an explanation of the valuation of the property, as well as the effect of the acquisition on any remainder property.
Some agencies make the offer to acquire at a personal meeting with the owner. During this meeting the agent may discuss documents pertinent to the acquisition, i.e., the ROW/construction plans, valuation report, title information, and either address or note any questions/concerns the owner has. Other agencies mail the initial offer to acquire, with supporting documents, and then set up a personal meeting to discuss the information with the owner. The advantage of both approaches is that they provide the basis for the acquisition agent to establish a rapport with the property owner that would more likely result in a negotiated settlement. Both of these techniques are considered best practices, and may be adopted as a result of state law or agency procedures.
There are situations, however, when personal delivery is not possible, or feasible. Some owners are not readily available in a location reasonably accessible to the agency’s representative for personal contact. Other owners may be unresponsive to an agency’s request for a personal meeting, or refuse the request altogether. In these cases, an agency would currently make delivery through certified mail, return receipt requested. Obviously, the disadvantage in this approach is that it does not provide the opportunity for the agent to immediately explain the basis of the offer, effect of the acquisition, and/or address questions or concerns the owner may have. This situation may be remedied with a follow-up telephone contact, where the agent can cover any missed information, and answer questions. This approach could be adapted to electronic delivery/signature verification. If a property owner consented to electronic communications, the agency could electronically deliver the offer and obtain an electronic signature to confirm receipt.
Experience has shown that acquisitions can sometimes be handled efficiently with a minimum of personal contact. The FHWA Project Development Guide outlines the use of accelerated negotiations by mail (available at the following website: https://www.fhwa.dot.gov/real_estate/right-of-way/corridor_management/pdg/pdg09.cfm). This is an optional approach intended to provide a benefit to the owner if they request a mailed offer, reduce agency staffing and travel cost, and accelerate the acquisition process. This approach may involve completing negotiations by mail without personal contact, or a limited use of this approach such as the first offer by mail with follow-up personal contacts. If the acquiring agency does not receive a timely response, there should be a follow-up telephone call. Any questions can be answered or, at the property owner's election, an appointment for a personal contact can be made. Having the written offer beforehand allows the discussions to focus on substantial issues when personal contact is necessary. The agency can also determine that future personal contact is in everyone’s best interest, if the issues associated with the proposed acquisition have become sufficiently complicated or involved. Experience with this approach has proven to be very successful and shown significant savings for the agency and the owner on claims where there is no substantial question concerning the acquisition. This method cannot typically be used on acquisitions which involve relocation.
This approach could be easily adapted to use with electronic delivery, rather than mail. If the owner requests or consents to receipt of the offer electronically, it would follow the same process outlined above. This method becomes even more applicable when these minor acquisitions impact individuals who have limited time availability, and indicate that they would prefer to review and consider the proposed acquisition in accordance with their own particular schedules. As time goes on, more and more individuals are comfortable with, and may even prefer, electronic communications as opposed to personal contact.
Recommended Best Practices for Use of Electronic Methods for Offer to Acquire
It is important to note that some state laws require the personal delivery or mail delivery of the offer to acquire. These states laws would have to be amended to implement any electronic delivery of offers.
