easement as per P & S??

The legitimate legal opinion of the professional land surveyor deals with land boundaries and their location. Issues of land use, while legal, are more properly the lawyers purview, not the surveyors. We deal with where, not necessarily what.

Richard Schaut

Richard:

Agreed 100%! And I would never offer a client an opinion in a case like this. But I'm curious what folks think anyway.

Lot 3 already has an easement. The terms of the easement are defined by the grant and how the easement has been put to use. The owner of 1,2 could claim that an additional lot would over burden the easement.Th owner of lots 1,2 did everthing that they were supposed to do and provided an easement so that lot 3 could have quite enjoyment of their lotand when they subdivide they will have to provide an easement to the new lot, most likely over a portion of their lot 3 unless they CAN BUY MORE RIGHTS FROM THE THE OWNER OF LOTS 1,2. When lot 3 was sold part of the deal was for an easement for lot 3, not lots 3,4,5,6,7,8. They could and should work this out themselves. They can save a lot of money by not hiring attorneys and going to court. Going to court is a BIG X FACTOR, that may work for you client or it may not.

Since two parites can enter into a contract that is what they ought to do and only bring an attorney inot the picture once they are in basic agreement, so that the contract can be properly drafted.

BTW, I do agree that the issue is a legal issue and not a survey matter. This does not prevent the surveyor from offering a lay opinion, just make sure your client understands that.

Having said that, I think it is important for surveyors to have a basic knowledge of easments. What they are, how they are created, how they are extinguished, what types of easements.....so on and so forth

What is the statute of limitations

> The catch is that when the owners of lot 3 bought, their P & S agreement said "seller to construct a road to town standards by ...[bygone date]." But that's all it says. My client says that he built the road and that the P & S does not state that he has to deed them any right to use it. Their deed, executed 3 or 4 years ago, does not include one. The State highway precludes any claim of necessity.

Has the statute of limitations already run on whatever claim they might have had under the original contract? That is, would they be barred from suing to enforce rights under the original contract?

Obviously, there isn't enough documentation to render an opinion without parole testimony, but depending on exactly how the Lot 3 owner's purchase and sale agreement was written, I would tend to believe that there was a promise made by the seller to build a road for the benefit of lot 3. Why else would there be wording about the road in the purchase and sale contract?

The moral to the story is that buyers should not let the Real-estate agent write the contract without it being reviewed by a competent attorney.

What is the statute of limitations

taking a look again, at what was written, I do not believe the owners of lot 3 have any claim of a right to an easment over the constructed road, if none is granted by their deed.ye have asccess to their property from the highway. Spond like they are trying to get something for nothing....

Dane

In Maine, the contract holds over the deed until the statute of limitations runs out. I know from first hand experience.:-)

I don't understand why 1/2 was supposed to build a road to state standards to benefit 3. Both have state road frontage.

Perhaps 1/2 was supposed to construct a shared entrance to to serve 3 and the residue, but I still don't see the obligation to build any road farther than the entrance.

Unless 3 can provide some documentation or evidence to the contrary, I think 1/2 is under no obligation to allow 3 to use the new roadway for a division of 3.

If the approved subdivision did not accept the easement as as public right of way then the owner of lot 3 does not have any right to use it to create new lots. For that right he most pay money, to the owner of 1 & 2 or to a contractor to construct a road on Lot 3 itself. The owner of lot 3 has the right to use the easement for only the exact purposes he uses it for now.

If the agreement says the owner of lot 1 & 2 was to construct a road to municipal standards and that was done, then the agreement has been fulfilled. The agreement did not say he was to dedicate a right of way for a public road.

The owner of lots 1 & 2 may be forced by the court to any interpretation a judge may construe, but that is not up to the surveyor.

Paul in PA

Well as you stated there is not a full factset, and I may be laboring under a misapprehension that there is NO conflict between the terms of the sales contract and the deed. Clearly if the espressed intention of the sales agreement is to build a road and grant an easement for use of same and this is not included in a a grant of easement or as a part of the terms of the grant deed, then there is a conflict.

Kent:

Good question! I don't know. Might look into it.

> If the approved subdivision did not accept the easement as as public right of way then the owner of lot 3 does not have any right to use it to create new lots.

I would argue that whether or not the town approved the right-of-way (which I believed they did) has nothing to with the purchase and sale agreement between the buyer of lot 3 and the seller of lot 3. They are two completely different things. If the issue goes to court and the owner of lot 3 prevails then the seller is in default.

I disagree. The wording of the P&S would tend to imply that the new road was for the use of 3 as well as for 1/2. I think that a compentent attorney can make a case for it and a judge, seeing the P&S as well as the graphics that have been presented showing that said road was unneccessary for either original owner to enjoy access to their property, would rule that the road was being built for the benefit of both. Said road, being to county standards should be built well enough for 3 to divide into 3/4. My guess- and that is all it is- is that the intention of the P&S was for #1 to build the road and convey it to the city by expired date. #1 did not meet the obligation of that P&S. That makes it a legal problem. #1 would appear to be in breach of contract.

But none of this is the surveyors duty to fix. Draft a map showing the evidence of the location of the roadbed with the r/w that the county would require shown with the centerline of pavement being the centerline of the r/w and provide that to the lawyer of #3. After that, it is not your problem.

One thing I don't know is why the lot 3 owners wanted the easement back when they bought -- I don't whether a future division of lot 3 was discussed at that time or whether it was simply because the land outside of lot 3 was better terrain for a road and the back (easterly) end of lot 3 the better house site. The 1/2 owner may have wanted to retain ownership of what became the easement area to meet Town road frontage requirements. I do know that the lot 3 owners thought (erroneously) that an easement over the road was included in their deed.

Danemince raised a good point re: overburdening the easement. Even if the lot 3 folks can win some right to use the easement, it may not suffice to allow them to divide the lot, especially if some other credible reason for the P & S clause can be adduced, i.e. that terrain and frontage necessitated the easement despite the lot 3 state highway frontage. My memory is that the current lot 3 frontage is not impassible but not ideal either.

But again, what is the town standards for roads? Are town approved roads able to handle 4 lots? I would suspect the answer to that is yes.

I would speculate that the seller and buyer of lot 3 discussed subdivision possibilities and that is why there is a reference to the building of the road by the seller in his purchase and sale agreement to the buyer.

The seller clearly created two lots exclusive of lot 3 and the inference to me is the owner of lot three was told that if he bought the lot (lot 3) he could subdivide it and use the easement that the seller created.

In many common law states the terms of the P & S agreement are merged out of existence by the delivery and acceptance of the deed.

I think all of the different ideas about the intent implied indicate that here is no clear meeting of the minds and that situation is a patent ambiguity. Courts are reluctant to accept parol evidence concerning a patent ambiguity.

If the current owner of lots 1 and 2 owns them in fee simple with exactly the same rights, he cannot create or hold the private easement shown due to the rule of merger. He would have to create the easement at the time he sold the property underneath it.

Carl:

I should clarify: the original owner, same one who sold lot 3, still owns lots 1 & 2. The easement was "created" only in that the Town has approved it for future conveyancing.

Now, see, I see it as a latent ambiguity. The P&S agreement called for #1 to make a road. That is clear on the face of it. But then you start looking, and you gotta ask "why was the sale of this property contingent on #1 putting in a road up to town standards"? Would it have hurt if the road was not in? What is the reason that the agreement required the building of the road. That is not clear in looking at the P&S, but only comes to light when you look outside that document- both to the survey showing the location of the state road which provides access and to the deed of sale. Then there is the latent ambiguity of the deed to #3. At first it looks great. But then you look at the P&S and now you are left wondering why they did not get an easement to the road which they were so specific to call for in the P&S that they made it a deal breaker.