Easement Note on Survey

THE EASEMENTS SHOWN HEREON ARE AS LISTED IN ____, PROVIDED BY ____ ON _____. NO OTHER EASEMENT RESEARCH WAS PROVIDED AND NO EASEMENT RESEARCH WAS PERFORMED BY ME IN THE COURSE OF THIS SURVEY.

That is similar to what we did in this particular case

:good:

If I had a nickle for every title abstract (binder) that some title company or attorney gave me that missed easements of record, I'd be a VERY wealthy man.
Then there are the "unrecorded easements".I have a major project downtown that we have prepared about 19 utility easements for over the years and those utilities have been built per those easements. Only problem is that the little corporate attorney thought it was too much trouble to record all of them. He did not think it was necessary. Only 3 are matters of public record.
Zoom to current time. New guy is buying the property. Wonders how the utility companies have the right to have all that stuff on his property. This has the potential to get interesting. To make it more fun, he has hired one of those National Clearing Houses for the survey work (An ALTA with a MAJOR Table "A" checklist). Wonder how many of the easements they will catch?
Evidently I have the only copies of the data. 😛

>
> For decades we have had a standard note on our surveys (mostly title), that stated that the survey was subject to any easements of record that a complete title search may disclose.
>

I have a similar note on my plats and in my legal descriptions. But, the wording is very particular and must be exactly right. I too would object to a note that said the property ... was subject to any easements of record ...

Just because an easement is recorded, does not make it a valid easement. I prefer to use language that makes it clear that the property ... may be subject to rights and easements not shown that might have been revealed by a complete and thorough, current title search.

Whether the easement is recorded does not make it valid (or invalid) and whether or not a search would have uncovered the easement does not make it valid (or invalid). Like I said, the precise wording on these disclaimers is very important.

Larry P

It's like everything else, including surveying underground utilities. We can only survey what we can see. I wonder if that attorney will give you a signed and sealed statement that he certifies that the binder he gave you has any and all easements of record. Of course he won't, any more than he will certify that all buildings you showed meet all setback rules, or that all the utility flags you located properly represent the exact locations of all of the utilities on the premis.

If you could certify all the things everyone wants you to certify to, all of those lawyers, title agents, and everyone else would be out of a job.

Educate me - is an easement enforceable on a party who had no notice by recording or otherwise, even where a prior deed to another buyer might not be?

If so, then buyers are playing poker without knowing how many cards are in the deck. Recording requirements are good.

ALTA standards or otherwise, we need to perform our own research in MA.

From the newly revised 250CMR:

(3) Research. Record Evidence of public sources and known private sources shall be examined to sufficient depth and scope such that the surveyor is convinced:

(a) The current description of the subject property and all abutting properties have been identified and acquired.

(b) The plats and surveys describing the subject property and abutting properties have been identified and acquired.

(c) The Operative Document that created each line or point on the subject property, or the best available Evidence of that document, has been identified and acquired.

(d) Conflicting descriptions describing the common lines of the subject property and the abutting property have been identified and investigated.

(e) Scrivener §s errors describing the subject property and the abutting properties have been identified and investigated.

(f) Appurtenances and/or encumbrances have been investigated when discovered through normal research procedures.

(g) The source and validity of Regulatory Lines affecting the subject property have been investigated, when applicable.

May have told this here before. If there is evidence on the ground you need to show the location of that evidence even if not addressed by title packet. I would refuse to remove the note unless the title company certifies a complete (from 1492 or before) search.

Once added a utility easement of record, not shown in title packet, to an ALTA. I included volume and page of recording from about 1840 +/- as well as name of the company. Attorney reviewing the survey called and said I had to remove all info relating to the easement. Claimed it was ancient history and he had never heard of the "Belmont Telegraph Company" so it no longer existed. I said the telephone and power line serving the property had ownership tags. I called the owner of the poles. Ohio Bell Telephone provided me with photo copies of the original document complete with recording stamps and original signatures. They also informed me that the telegraph company still existed and was a totally owned subsidiary of Ohio Bell.

Attorney "OOPS!!! Can I get a copy of that document? I need to educate the title company."

That is great!! Appreciate the feedback!!

I gave the short of our note---The word "May" is part of the note---I should have given out our entire note---I was paraphrasing. Thank you for the feedback!!

Yes they are transferable, enforceable and still exist if written that way. Which brings me to another of my conundrums.... (For title transfers)

Shouldn't the buyer be aware of his complete zoning conditions?

Would building height, coverage calculations, setbacks, etc all be important in buying a property? If you are non-conforming, would you not necessarily buy the property or re-negotiate it if you had future plans?

The variance process can cost thousands with no guarantee of success...The prospect of a simple shed could kill a deal if the buyer was pre-informed that the lot does not conform to X amount of zoning standards.

I've had a local Title Company to research a property back to creation a few times and it cost about $250.

The last one was back in 1986 when a client wanted me to see where the 2+ acres he was being taxed on was. It had to be the remainder of property along the East side of Lake O' Pines. He and his family were fairly sure that they had sold all that land years ago. The search of records to produce me a list of all sales from that property and in that Headright cost $234. That was at a time when I did not have the hours to get away from the desk to do that extensive of a search and I would have charge them that much or more anyway. I did go thru all that information and of course out of 640 acres of land, the conveyances did not add up to 640 acres, they rarely do exactly, always more or less. Still don't know if the Tax office was satisfied or not. They taxed 640 acres whether it was that or not.

Recently, the Title Company quoted something like that for going back about 20yrs and about the same amount for every 10yrs to the creation.

Now I know why a few guys I know who were on the road to getting their license turned left at the university's gate and started as lease hounds or land men.

The title company here has only see two ALTA and I've done both of them.

There expression was "what is all this for".

IMVHO, they rely upon me way too much some times.

B-)

Hey Dallas

AS a young man attending college, I met a guy named Dallas Austin. Born and raised in Bogalusa, Louisiana and had never even been in Texas!

Hey Dallas

> AS a young man attending college, I met a guy named Dallas Austin. Born and raised in Bogalusa, Louisiana and had never even been in Texas!

Other than U.S. Air Force service, yes basic a Lackland AFB, I've lived in Ohio. Dallas was also my father's name. I have no idea how that name was selected.

"Whether the easement is recorded does not make it valid (or invalid)...":

Can you clarify this statement? I'm having trouble understanding what you mean...

Thanks

> "Whether the easement is recorded does not make it valid (or invalid)...":
>
> Can you clarify this statement? I'm having trouble understanding what you mean...
>
> Thanks

The fact we find a document that describes an easement does not mean the easement exists. We had a case here where a man was in a very nasty divorce from his ex wife. So nasty, he brought in a "fake" to sign a bunch of documents.

Later, when the ex wife found out about the fake papers, she (and her attorneys) ate this guy for lunch.

Of course, the fake documents can't be unrecorded. So that is just one (extreme) example of what I mean about finding recorded documents does not automatically mean the easement exists.

I have also seen examples of easements granted by parties who had no legal right to grant the easement. In cases like that, you can find a document, but that does not mean an easement exists.

Also, with a few limited exceptions, there is no requirement that easements be recorded. I have seen cases where decades when by with valid easement documents sitting in records rooms at utility companies.

Hope that clarifies my thoughts. Have a great holiday weekend Jim.

Larry P

I have in front of me right now an easement a party granted to himself over his own property. For what reason I do not know but I think that it is invalid due to the Doctrine of Merger. I have also seen easements granted by a party with no interest in the servient estate.
The real problem is getting the title company to remove the exception.

I never put such a note on my surveys, but I did do all of that for my surveys. A title report is just a starting point, along with the assessor's map. Now the research begins.

Rule of thumb, half the title reports I have seen have errors and omissions, so I can't trust any of them to be my risk avoidance tool.