The scenario- a largish property (for this area) being subdivided into 110 building lots and several tracts (for green space, park, and storm water retention). Before I got involved in the project the property was divided into several parcels with utility and access easements in the exact locations of the proposed rights of way, in favor of the city.?ÿ Why they needed easements at that phase of things, I don't know. Why they didn't just dedicate the right of way then, I don't know that either.?ÿ But the easements are a fact.
Now the final plat is to be recorded, complete with dedication of rights of way.
The question: do the easements cease to exist when the right of way dedication terminates their purpose for being? Or do we need to have the easements expressly relinquished??ÿ ?ÿ ?ÿ?ÿ
TxDot uses temporary easements as well as Pipelines for construction purposes and they have a termination clause that states that they end after the construction has been finalized or on a certain date.
The easements are a fact.?ÿ There is a valid dedication offer by the land?ÿ owner/subdivider and acceptance of the plat and dedications by the government entities.?ÿ?ÿ
I think you are on the right track of extinguishing the easements by action of platting authority vacation or other relinquishment documents, done subsequently or together with the final plat dedication of new road right-of-ways and other easements.?ÿ ?ÿ
Without doing so, there would be layered encumbrances on the land from both platting actions, and in addition to being confusing, its possible that there could be conflicts or mis-alignment of the initial easements and?ÿ final right-of-way and easements.?ÿ I have worked with land that had those issues, and its a big pain in the you know what when you have to identify and label both sets of encumbrances when they are close but not exact.?ÿ?ÿ
I'm not sure of your platting authority code and how the planning department and/or commission operates, but most platting authorities I have worked with can work a petition to vacate prior easements in parallel with acting on the petition and approval for the new subdivision.?ÿ Probably a meeting with the platting staff to discuss the issue and the best resolution would be in order.?ÿ?ÿ
Carry on, good on you for thinking ahead.?ÿ?ÿ
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Am I understanding this right, the tract had previous access?ÿ and or utility easements, is where a new right of way is going to be? Is the new right of way public or private? If its a public right of way I dont see this being a big issue, until the road is closed and the city wants to sell the land to the adjoining tracts, then the old access and utility easement will come into play. Are the access?ÿ and utility easements to the City or to a private company, or to the previous lots? I don't think the City can abandoned the utility easement without the Utility companies signing off on it . Around here each Utility company wants a $1000 to look at it and say yes we dont care if it is abandoned.?ÿ
Not sure what state this plat is in or what the dedication statement or easement documents says but the following easements are not generally allowed in road right-of-way and would require subordination or extinction prior to acceptance by a grantee:
- Exclusive easements
- Semi exclusive or intensive use easements
- Gas transmission easements
A plat dedication is an offer to convey, streets in this case, that has to be accepted by the entity (grantee) accepting ownership on behalf of the public. In many cases that acceptance is predicated on performance by the grantor to build the roadway and other improvements and insurance that said construction meets standard.?ÿ The grantee (City, etc.) may accept the plat with a bond in place or other guarantee that performance is ensured. However if the project goes sideways and the bond defaults, the grantee could allow the land to default/revert to the original land owner or some other entity like a homeowners association. In that case, a utility company would like to have an easement in place as they may have accepted ownership of the utility.?ÿ Rare occurrence I believe but it could happen.?ÿ
That said this is a question of law and I am not a lawyer.?ÿ
Times are a changing.?ÿ These funky issues are what happens when land use planners and engineers with very little real property knowledge brain storm conditions for a tentative plats and the Land Surveyors don't take an active part in the tentative process to make sure these funky conditions don't get conditioned!?ÿ I say times are a changing because a few years ago engineers knew more about real property and had more survey background and land planners kept their noses out of?ÿ our realm.?ÿ ?ÿSeems more and more surveyors are taking the back seat and not being heard when needed and then going along to get along (putting the crap on the final plat).
My 2 cents, Jp
If the easements are granted to the same entity that eventually comes to own the land I thought they simply go away.?ÿ Maybe it varies by state?
I wish it could be that easy and sometimes it is, but with everything its always the details and how the Plat was dedicated and the wording.
Did the original developer have a note saying if the Plat is every abandoned then the streets go back to them or their heirs? Did anybody do any improvement on the tract after the Plat was filed? If no improvements have been done, that does make it easier to abandoned the Plat. Were any of the Lots sold out of the Original Plat? Any combination of Yes and No makes a differences. All NOs makes it easier.
Is it the same owner? Of course different States have different laws, different Cites have different rules and regulations.
As far as I am concerned, the easements still exist, unless language on the plat specificies otherwise.
"Generally, easements are created by express grant or reservation. Easements are perpetual unless they are expressly limited, or terminated by agreement, abandonment, implication (e.g. necessity ceases to exist), adverse possession, or another means of formal termination."
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"Generally, easements are created by express grant or reservation. Easements are perpetual unless they are expressly limited, or terminated by agreement, abandonment, implication (e.g. necessity ceases to exist), adverse possession, or another means of formal termination."
Would not this be a case of implication?
Would not this be a case of implication?
Possibly, provided the entity that has the easement is consensual.
