I have my opinion on this but am interested in the opinions of others.
Working on a project when I come across a recorded plat of a Condo Complex. The plat shows in detail Phase 1 of 4. The other 3 phases are roughly shown but without any dimensions. These phases exist in concept and are probably shown because the developer wanted the planning authorities to see the whole plan.
The southern line of Phases 3 and 4 shows "10' Electric Utility Easement" and a hatched area.
There is a block where the Developer signed saying:
"The undersigned hereby acknowledge(s) this plat and allotment to be ____ free act and deed, and hereby dedicate to public use as streets, parks, playgrounds, open spaces and easements forever all areas shown or so indicates on site plan. Signed _____."
Several different people have searched and no one can find a recorded document that actually conveys the 10' electric utility easement to anyone.
Also, Phase 2 of the development happened, but Phases 3 and 4 never did and never will happen. The so far undeveloped areas (Phases 3 and 4) have been conveyed a couple of times without any mention of restrictions or easements.
Does the 10' Utility Easement exist?
Was the recording and dedication on the plat sufficient to dedicate everything in all phases?
Who can claim the easement is theirs to use? The water or sewer departments?
Larry P
I'd say no, not without a conveyance and an acceptance.
If utilities were installed and no formal easement granted.....then
There would be an easement by prescription
Yes It Exists, No Water Or Sewer In An Electric Easement
Only electric and possibly by extention communications and cable.
Paul in PA
Does the boundary description, shown on the final recorded plat of phase one, include the property shown as phase 3 and 4?
Alot of things are shown on plats for clarity, that doesn't mean they were meant to convey property.
Did the developer signing the plat own all of the property; in other words, did they have the authority to grant the easement?
You are leaving a lot of stones unturned.....:-S
I have found a few of those over the years.
I show the easement as appearing on the record it was shown to appear and will indicate the name and actual location of the utility if I can visibly see its location.
0.02
Depends.
If this were in California, which I assume its not, then the answer would be clear as this and similar situations are fairly well codified in the State statutes.
I would say if no utilities were ever installed, then no, the easement does not exist.
How's this for an answer: It depends.
In the normal case, there should have been no need to show anything beyond the Phase I project which was requesting approval by appropriate authorities. I would not normally even look at anything beyond that Phase seeking approval as being relevant other than in a very general sense. This is especially true when the later phases are nothing but blue sky thinking at this point in time.
On the other hand, if the existence of the so-called electric easement is essential to Phase I being developed, then it should be handled as a true easement. However, the offer of such an easement must be accepted by a power company for it to carry any weight, in my opinion. If the approving authority does not have in hand an acceptance letter from the power company, and there is no other feasible means of supplying electricity to the Phase I development, then the approving authority should not accept the plat.
OK - I'm speaking from a Virginia perspective. Dedication of a utility easement does not require acceptance of the easement by a utility. So, based on what you have stated above, I would believe the easement exists. The real problem would be how to get rid of it.
Nope - I don't believe that the public is a legal grantee for an electric easement...
> Does the boundary description, shown on the final recorded plat of phase one, include the property shown as phase 3 and 4?
>
> Alot of things are shown on plats for clarity, that doesn't mean they were meant to convey property.
>
> Did the developer signing the plat own all of the property; in other words, did they have the authority to grant the easement?
>
> You are leaving a lot of stones unturned.....:-S
The boundary elements are only present on Phase 1. Phases 2, 3 and 4 are there but almost like someone "grayed out" the items but did allow them to print. No bearings, no dimensions, on the other phases.
Yes, we are being very careful on how to handle the matter.
Hope things are well in your world Radar.
Larry P
I see in my earlier post I forgot to mention that Phase 1 was recorded in 1986. Phase 2 was done a few years later and does not show Phases 3 and 4 at all.
A call to NC811 revealed no utilities of any sort within the area. Although I must confess that more times than I care to mention I have been told by the utility marking companies that they will not mark utilities for surveyors.
This easement is in no way necessary for providing power to other phases of the development. If I were guessing, I guess the only reason it was shown in the first place is someone in the planners office decided it might be a good thing for the city to have and thusly made it a requirement for this person.
Larry P
> Yes, we are being very careful on how to handle the matter.
Always be as careful as possible; and if you can, a little more careful than that.;-)
Look at it like a judge would look at it, if it was presented to them and in what contentent is it being presented.
I like the response below from Holy Cow; is it esential for the development of phase being recorded? Then absolutely; everything else requires proof of intent.
> Hope things are well in your world Radar.
Things are looking a lot better than they have been, for a very long time.
I hope you have a great 2014, I know I will.
B-)
I would say it does exist. I've seen a lot of subdivision plats that show, for instance, a 10' utility easement on both sides and rear of the lots, and sometimes just wording to that effect in the notes. The utilities don't have to be in place to be a valid easement, because sometimes they aren't necessary until a house is built on it. I would consider it to be a valid easement, unless there has been a formal vacation recorded. That would seem to be the intent, imho.
Here is my take. It does not matter if the easement exists or not. You should show it on your survey as easement per "mab book x pg x". Whether or not we can find an actual easement or not, the depiction of the easement on a plat with an acceptance certificate creates a duty for the surveyor to show it. Its up to others to determine whether it is a legal easement.
21 NCAC 56 .1602
(b) Any and all visible or determined encroachments or easements on the property being surveyed shall be
accurately located and indicated.
(c) With respect to investigation of property boundaries and recorded easements, the surveyor shall examine the
most recent deeds and recorded plats adjacent to the subject property as well as all deeds and plats recorded after the
date of the deed or plat upon which the survey is being based (the survey reference deed or plat).
No, it's not even an offer yet. The only way it could exist in any jurisdiction is if it was mandated by the municipality for some other use as a condition of approval of phase one.
Show the facts
10' Utility easement as shown on recorded plan. Current status unknown.
thats exactly it, the municipality mandates these dedication certificates. they are absolutely a condition of approval.
> No, it's not even an offer yet. The only way it could exist in any jurisdiction is if it was mandated by the municipality for some other use as a condition of approval of phase one.
I agree with Duane. I'd also say that even if there was an offer, there's certainly been no acceptance.
