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Temporary Easements on ROS
Posted by BStrand on August 27, 2023 at 8:01 pmI’ve got a project where the city is wanting me to show temporary construction easements on a record of survey. This seems dumb to me and I’m curious if anyone else out there has run into this before, and how it was handled. If you were able to push back against such a request, what was your argument? Or if you went along with it, what was your reasoning?
rover83 replied 1 year ago 13 Members · 23 Replies -
23 Replies
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I don’t think cities have a say in what goes on a Record of Survey, it’s a state requirement. Unless your state law requires it or it’s relevant to the survey it need not be shown. (There is always the MAY clause)
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If the construction has not been completed it is your obligation to your client to show it. If the construction is completed and accepted by the authority it was granted to, the temporary easement is extinguished upon the acceptance of the improvements and becomes irrelevant.
In your situation, if the construction has been completed and accepted, tell them to pound sand.
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I’d show it and the date it expires. That easement needs to be given consideration by the property owner as long as it’s valid. If the property was to sell the new owner has a right to rely on the ROS.
Would you leave off a temporary driveway easement if the driveway wasn’t built?
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We very rarely show easements on any standard survey. They CAN be shown if so requested. Nearly all rural surveys would have at least one easement for the county road serving the property. Might have two or more such road easements for a single tract.
It’s just the standard practice here. Only show easements of any kind if added to the standard job request. So many easements in rural areas have been written so poorly over the decades it would be difficult to nail down precisely where they exist. For example, rural water district easements generally either read as a blanket easement on the entire property or so many feet either side of the pipeline as laid. The pipes are all plastic and have no tracer wire installed. It is extremely rare to find records showing where the lines were installed. Best guess is somewhere inside a road fence and somewhat parallel to that fence, except for where it isn’t. Then it might be dang near anywhere.
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The ROS is to show a permanent easement that is being created for the benefit of the city. The temporary construction easements are related to the permanent easement but… I was planning to do a separate description and an exhibit for the temporary easements. The city says they want the temporary easements shown on the ROS in case someone from the company that owns the parcel drives by and sees work going on and panics. I’m like what…? I don’t know how those things are related, but even if they were I’m not a fan of showing something temporary on a ROS. As far as the state code goes we’re required to monument easements (and thus file a ROS) that are permanent in nature that don’t abut a previously monumented line, neither of which apply to these construction easements.
Anyway, I appreciate the feedback so far, it’s great to see other points of view.
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It has been my experience that on some occasions, a client does not always know what they are asking for. In the situation you are describing, I would likely explain to my client my reluctance to show a ‘temporary easement’ on a Record of Survey. I would offer to prepare an exhibit map instead for them to use in negotiations for the easement with the landowner. That being said, I have prepared several land descriptions for temporary construction easements that contained a graphic exhibit anyway, and these documents did get recorded, but not as a ROS.
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@cv
Yep, I’m totally fine with preparing a separate description and exhibit if they’re looking for something to record. I’ve been going through a PM rather than talking directly to the city rep so maybe my solution isn’t getting relayed with the right amount of gravitas.
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In 14 years, my office reviewed and filed over 2600 records of survey. We hardly ever saw any easements shown on them because in Oregon it’s not required by law to show easements for rank and file boundary surveys (as opposed to land divisions like subdivisions and partitions). Some surveyors would show existing easements on their surveyors and some of the ROS filings were to document and/or monument new easements, rights-of-way, etc.
Our in-house policy we had for any ROS was not allowing notes like “Road to be vacated” or showing a proposed road with wording like “future road”. This was based on about 100 years of institutional experience regarding harm and confusion to the public, to wit, a 1940 survey with a public road labeled “to be vacated”, it never was vacated, and in the 2000s a house was built in the R/W based on the 1940 note. Or, a public road R/W on a 1985 survey had an extension shown beyond the ROS boundary with the note “future public road”. Road was never dedicated but in 1995 folks relied on the 1985 note and punched a road in across private property since the survey said “future public road” and 1995 was the future to a land owner’s math (1995-1985=future).
My point being is that in a recording state a Record of Survey is forever. The public can be misled decades from now by extraneous information of a temporary or hypothetical nature.
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I think I’m in the minority here…I don’t mind showing temporary easements on surveys, recorded or otherwise, if they are (a) obviously still in force or (b) there is any doubt whatsoever that they may or may not still be in force.
The extinguishment trigger for temporary easements can be pretty convoluted. I’ve seen “temporary” easements that were still in force 50+ years later due to the conveyance language.
In any case, I’m not worried about whether or not the easements I show will still be in force when the next surveyor comes along. I care more about whether they are shown in the correct location. I’m not going to make a statement about whether or not they will be gone or when – I’ll show them where they are and reference the recording document.
For all I know, all of them will be gone or there will be a pile of new ones on top of the existing ones within a month of me recording. That’s why landowners get current title reports, and special exceptions are investigated.
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil Postman -
In my ideal world, a survey should reference the document creating any easement it shows and not be the document creating it unless that is explicit in the wording as would a new subdivision.
Under that guideline, it should show all easements of record against the property, temporary ones included.
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While not a requirement, it’s probably much easier to just go ahead and add it to appease them and move on.
All easements can be extinguished. Just because a document may say ‘permanent easement’ doesn’t make it so. Denoting an easement, temporary or otherwise, on a survey is merely documenting the facts at the time of the survey. You can’t be responsible for how people perceive it 10, 20 or 50 years from now.
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Maybe this is an overbroad statement, but I can’t imagine anything wrong with putting correct information on a survey as long as I was getting paid to do so. If the information is correct what is the harm?
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@bstrand I understand his position and it is certainly not unreasonable. However, I think the information is more valuable than trying to eliminate all risk of someone building a road for which they have not secured permission to build. “Future” and “proposed” certainly do not mean “is”. I would much rather have the correct info and be informed than to be ignorant because someone else is unable to understand the meaning of “future” or “proposed” or “temporary” etc.
Even the ALTA standards Table A have an item to show proposed changes in ROW lines. I’m not keeping information off of the survey because others have a problem understanding the meaning of certain words.
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The city says they want the temporary easements shown on the ROS in case someone
How much money do we spend for a public servant’s “in cases”? (Which means, please don’t let someone bother me with a phone call, in this case.)
My point being is that in a recording state a Record of Survey is forever. The public can be misled decades from now by extraneous information of a temporary or hypothetical nature.
Well, all those cases you gave are people being misled by their ignorance and lack of due diligence…not a bad or erroneous survey.
I think I’m in the minority here…I don’t mind showing temporary easements on surveys, recorded or otherwise, if they are (a) obviously still in force or (b) there is any doubt whatsoever that they may or may not still be in force.
Typically, we show easements if a title report is included (additional cost, of course), or if an easement is requested to be shown. If you label the easement “Temporary Easement per AFN 1564982,” how could that possibly be a detriment to anyone?
I will show proposed parcel lines, proposed easement lines, and whatever else is needed on an ROS, if requested and if the purpose and nature of the lines is clearly stated.
“Parcel 1, ROS 685/938.” Can you think of a better legal description?
-All thoughts my own, except my typos and when I am wrong. -
Well, all those cases you gave are people being misled by their ignorance and lack of due diligence…not a bad or erroneous survey.
Right. You can’t fix stupid. But, stupid can take you to court, which is what happened to the 1995 surveyor for his carelessness in putting crap on his otherwise good 1985 survey because the client wanted the speculative road extension on it and the surveyor was to timid too say “no”. The surveyor spent less than a minute drawing two parallel lines and leroying “Future Road” on the survey in 1985 and then got to spend untold hours and dollars 10 years later fighting with lawyers. On his own dime. The original client was long gone but that didn’t matter. The surveyor was the one who stamped and signed the survey. They ain’t going after the guy who requested the data, they’re going after the one who published bogus information. It all got thrown out of court, but I don’t think the surveyor’s life was enriched by the ordeal. An ordeal that could have been easily avoided if he’d stood up to his client from the get go.
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It all got thrown out of court, but I don’t think the surveyor’s life was enriched by the ordeal. An ordeal that could have been easily avoided if he’d stood up to his client from the get go.
I get it, but we can get sued for anything at all. Even for stuff we do absolutely correct. Perhaps he should have clarified what, “Future Road” meant, and we can all take that to heart. What seems obvious today needs to be clear 20 years from now.
-All thoughts my own, except my typos and when I am wrong. -
I don’t work in a recording state so I don’t really understand recording a survey, other than a subdivision plan. What blows my mind about some of these comments is not showing easements that potentially could impact the usage rights of a land owner who does not have notice that they exist.
Although I don’t know all of the circumstances surrounding the complaint, one of my former bosses was reprimanded and fined by the NJ State Board for not showing an easement.
It would seem to me that that and current easements that affect land title should be shown on a survey to put the public and land owner on notice if we are to protect and promote public safety.
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but we can get sued for anything at all. Even for stuff we do absolutely correct
We see eye to eye on that, but why up the odds by caving into the whims of ill informed clients, attorneys, planners, engineers, project managers, realtors? I’ve seen so many surveyors and their projects get wrapped around the axle by outside interlopers imagineering stuff to put on their surveys. Mainly on plats – subdivision or partitions creating new lots and parcels. Attorneys are the worst, of course, but if the surveyor holds the line, informs the attorney you can’t do [X] on a plat because [insert pertinent law citation here], they will back off and likely respect the profession more than had the surveyor meekly agreed to putting a condition on the plat’s declaration that only red begonias can be planted along the margins of driveways*. Or other such folderol.
*ORS 92.050(9) would stymie this proposed wording
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