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Who receives the easement?
I’m doing some work in a small town not far from here. In the last 15 years they’ve stepped into the real world and have built a tax base, a water system and they even generate enough speeding ticket revenue from their half mile of highway frontage to pay for a squad car and a boy scout to drive it. They’ve actually done fairly well.
And like a good number of municipalities around they love to stick development with a stack of permits and requirements that will hopefully fund their “inspection” department. One of their requirements is a 10 acre minimum on residential sites that do not go through the platting process, which involves the county and state health department. OK.
I represent a client that own 220 acres of beautiful Walnut Creek bottom but lives about 20 miles away. He’s made a good living growing and selling his alfalfa there. He and the missus have recently decided to retire and build the “big house” out at this farm. Not wanting to live too close to any traffic he decided his 10 acres should be on the interior of his land. I surveyed the NW/4, NW/4, SE/4 for him. His NW property corner is the center of section.
In an attempt to expedite everything he got the ball rolling on a mortgage (construction loan) and a building permit simultaneously. The local municipality says he needs “permanent” access provided to the 10 acres, and the lending institution agrees (in theory) with the requirement.
Technically, to dedicate an easement requires someone other than the record owner to become the grantee of these rights. The title company and I agree on this. Neither the town nor the county want the access dedicated to them, apparently fearing maintenance responsibility. If I create a parcel that has a 40 or 50 feet strip that extends to the section line it fails the town’s frontage requirements of 150′.
I provided the client, the town and the title company with a few options. The client would prefer to not have a piece of property with a half mile long skinny panhandle, even if the town would allow a variance from their frontage requirements. The simplest is to just show a 40′ strip on my survey and label it as “access”. The lender doesn’t like that idea and is leaning toward ‘dedicated’ access and the town inspection department has remained silent (they don’t know what is going on).
I have suggested my client dedicate the easement to any “future assigns” of the ten acres. The title examiner doesn’t think the lender will buy that.
Anybody have any suggestions?
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