What would be the proper way to nullify an existing deeded private R/W or easement (no improvements in place). It would seem that a deed would need to be created formally terminating the previously created access, with signatures of all parties affected, and yet I cannot remember ever seeing such a document before.
Still learning.
I hope this is not hijacking the thread but I have the same question on the best way to change a platted building line.
On Galveston Island after hurricane Ike many homes were flooded and FEMA came in and said you can issue permits to repair homes that are above the BFE but you must raise the others to the BFE before repairing.
Many of these homes had to be raised 3 to 5 feet and since they were already on the front building setback line when raised the stairs are now be over the front building line.
The subdivision this lot is in was recorded about 50 years ago and had a 25’ front setback line on the plat. Deed Restriction had also been filed that called for the front building line and other restrictions. The recorded Deed Restrictions expired in 2005.
The City of Galveston changed the zoning ordinance requirement in area of this subdivision to a 20 feet setback instead of the normal 25.
When doing the survey I showed the platted 25’ setback and the encroaching stairs. The owner insisted that the building line was null and void because the restrictions had expired and that the City had said they would not enforce the 25’ building line since the ordinance was 20 feet. She also insisted I not show the platted building line.
I told her that plats don’t expire and that building lines shown on the plat are self sustaining and don’t need Deed Restrictions to be enforceable. I also said that the City cannot change a platted setback by ordinance and that anyone who felt damaged by her house being over the building line could sue to have the stairs moved behind the building line even if the City would not enforce it. I also said the only way I know of to change a platted building line is with a Replat.
I let her know I was not the setback police and I understood why the stairs were like that but that I was trying to save her from future problems if see tried to sell the house and the next surveyor caught the encroachment.
I was wondering if there is another way to amend a platted building line except by a replat and do they need the backup of a Deed Restriction, or can the city change it by ordinance?
Perhaps you could show both, with a reference to the plat, and ordinance sub-sect. and paragraph, and also ref. the deed with expiration date.
Recorded Plats that create multiple lots simultaneously are like deed documents. Setback lines and such do not belong on those document because they are subject to change by governing body's. I think you are doing a disservice to your client by holding to something that historically is subject to variance or change by actions of others outside of the deed, "Plat". If you insist, show the new ordnance location for setbacks and in your narrative note that there has been a change in requirements from when the Plat was created.
jud
Are you saying that when building lines, easments, and other restrictive covenants are shown on a plat they are not valid or enforceable?
Robert,
I'm not sure if this applies but I recently did a boundary line agreement between two platted lots. In this case the plat had a note creating a 5' utility easement along all lot lines (I think it was interesting that there was no mention of said easements in the dedication statement on the plat but that is a different story). In this case the easement was vacant and the owner had to go through the county’s vacation process to have it removed.
In Oregon, home of land use planning, the local jurisdiction can certainly change the setbacks by ordinance. Showing a set-back on plat would be considered in bad form unless the restriction was created in favor of some third party. In your case, to whom were the deed and plat restrictions in favor of? Is the set-back restriction specifically dedicated on the face of the plat or was it just depicting the restriction to be recorded in the original deeds? If the current city ordinance is 20' I would show it and show the 25' set-back noting its origin.
John
It is split in Texas between cities that require the building setback lines be shown on the plat and cities that don't. The way it is going now is that several cities have stopped requiring it because they realized they couldn't change the setback by ordinance once they accepted the plat. It this case the plat clearly shows a 25' front building setback line. It was not an option with the landowner to show it with explanation but only that it be removed entirely.
Most jurisdictions here require that the setback be shown on the plat, or they will not sign for recordation. I have also been told (by one jurisdiction) that the platted restrictions supercede any more stringent subsequent setback imposed by ordinance, but must be enforced with any future improvement or construction.
On a related note, on a current project in another jurisdiction, the Town and DOT are requiring an additional 9' of R/W be extended on either side of the public road for future use, which pushes the setback into the existing structure. I can see this becoming a problem in the future. after consulting with the town planner, I am including this note on the re-division survey.
THE xxxxxxxxxxxxxxxxxxxxxxx WAS BUILT IN CONFORMANCE WITH THE EXISTING R/W AND MINIMUM BUILDING
SETBACKS WHEN IT WAS CONSTRUCTED. THE CHANGE TO THE R/W AND MINIMUM BUILDING SETBACK SHOWN ON
THIS INSTRUMENT WILL NOT BE CONSTRUED TO NOW CREATE AN ENCROACHMENT OF THE EXISTING STRUCTURE.
ANY NEW CONSTRUCTION OR EXPANSION WILL BE REQUIRED TO CONFORM WITH THE MINIMUM BUILDING SETBACK
AS ESTABLISHED BY THIS INSTRUMENT.
> What would be the proper way to nullify an existing deeded private R/W or easement (no improvements in place). It would seem that a deed would need to be created formally terminating the previously created access, with signatures of all parties affected, and yet I cannot remember ever seeing such a document before.
>
> Still learning.
Gordon,
The appropriate document is typically a "Release of Easement" which takes the form of an affidavit, not a deed. The affidavit would simply identify the dominant party (the person releasing the easement), the source of the easement (reference to Bk, Pg or Entry), and the fact that they no longer have a need for the easement, as granted, and "hereby release" all claims (rights and interests) associated.
The reason that there is no need for a grantor/grantee, as a deed would require, is that the easement rights are being terminated, not transferred. The holder of the easement simply terminates their claim and the easement automagically dissolves.
JBS
JBStahl, Thanks for your enlightening response, and thanks to Wendell and Angel for making this forum available.
Where and why would you look for such a document when doing research, unless you had prior knowledge? Such things need to get into the chain of title or they get lost.
jud
> In Oregon, home of land use planning, the local jurisdiction can certainly change the setbacks by ordinance. Showing a set-back on plat would be considered in bad form unless the restriction was created in favor of some third party. In your case, to whom were the deed and plat restrictions in favor of? Is the set-back restriction specifically dedicated on the face of the plat or was it just depicting the restriction to be recorded in the original deeds? If the current city ordinance is 20' I would show it and show the 25' set-back noting its origin.
>
I completely agree with what John is saying here. Subdivision plats should depict matters affecting title to property and the associated rights, such as easements. Real property "interests" should not be shown and, I would agree, is "bad form." Regulatory interests are too fickle to be shown on a plat (I hesitate to show them on a survey, too).
The primary question, which I believe John addressed, is, "who holds the restriction?" If it's a third party (by covenant), then the municipality cannot interfere. If the restriction is "expired," then the third party's interests in the lot have expired with it and the covenant is no longer enforceable. There would be no 25' setback line to show. One question to ask is, "did the restrictive covenant create the setback, or did the plat create the setback?" The two are most likely concurrent documents with the plat depicting a restriction which was created by the recorded document. Chances are that the expiration of the covenants eliminated the 25' setback. The city has created a new one which it now controls at 20'.
One note of curiosity, here. Where I'm from, the setback line would limit the structure, not the steps leading to the structure. Apparently, your municipality treats the front setback as a "no-build" area?"
JBS
> Where and why would you look for such a document when doing research, unless you had prior knowledge? Such things need to get into the chain of title or they get lost.
> jud
The "Release of Easement" would be recorded against the servient property (and likely the dominant property as well) and would show up in the title chain.
JBS
>
> One note of curiosity, here. Where I'm from, the setback line would limit the structure, not the steps leading to the structure. Apparently, your municipality treats the front setback as a "no-build" area?"
>
> JBS
Around here, a lot of municipalities have an "open to the sky" clause in the definitions of their setbacks, which has an effect on eaves. Others include language like this:
"Setback: The minimum horizontal distance from a lot line to the nearest part of a building, including porches, steps, and railings. Within the Shoreland Overlay District, the nearest horizontal distance from the normal high-water line of a water body or tributary stream, or upland edge of a wetland, to the nearest part of a structure, road, parking space or other regulated object or area."
This is the plat maybe you can zoom in enough to read the dedication and tell me if this plats creates the building lines.
Not too good at this I hope this is a readable crop of the dedication
I would say yes.
There is the notarized offer of dedication of the plat "shown" and an acceptance by the Mayor, attested by the Secretary of the Board of Commissioners.
Pretty simple in 1943, though. Today there would be a whole raft of signatures.
JB,
An affidavit is not going to be good enough. What you describe will release the current rights. However, an easement attached to a parcel of land (appurtenent) would not normally be extinguished by such an affidavit unless it was a question of whether it existed in the first place. Even then a future owner could make a claim.
There is an interest in real property that needs to be transferred here. A warranty deed is the way to do it.
Really robert,
Why are you worrying about this at all? You should realize that those lines, indeed, the entire tract should cease to exist in its' current form and ownership. After all, it is a "gore" tract, is it not?
All seriousness aside,
Jack Chiles
> JB,
>
> An affidavit is not going to be good enough. What you describe will release the current rights. However, an easement attached to a parcel of land (appurtenent) would not normally be extinguished by such an affidavit unless it was a question of whether it existed in the first place. Even then a future owner could make a claim.
>
> There is an interest in real property that needs to be transferred here. A warranty deed is the way to do it.
Duane,
I don't understand. Can you have a warranty deed on an easement? Or what exactly do you mean?
I am probably just ignorant here on what you can write a warranty on.....
Tom
