Easement use for Encroachments

Another approach is provided for in the California Civil Code (section 813) to record a Notice of Permissive Use over an area such as this. It is geared toward protection against a potential adverse possession claim.

"Just attorney description of easement."

That alone is enough of a deterent for me!

Or consider 99 year lease agreements for 'encroachments'?
Sample Rental Agreement

DDSM:beer:

An Attorney (with the right expertise) can structure an agreement that heads off certain legal problems. If they start describing relationships to boundaries it's time to slap their hands.
I find it odd the planners would put themselves in that spot. If one goes south they may find themselves on the hook...

Rental agreement is interesting.

I find it odd the planners would put themselves in that spot. If one goes south they may find themselves on the hook...
The platting authority here seems to operate under the presumption they have no liability for anything they do.
Seeing the errors they have propagated over the years and the lack of repercussions they have suffered, I believe them.

I am also wondering about insurance.
The attorney has told me that homeowners insurance covers these easement areas. I talked with local agent and he questioned this.

It's not anything I have heard of, but maybe I'm not up on the latest and greatest.

I think it's a bad idea a lot because describing the new line whether it is a permanent easement, or a boundary line is virtually the same thing and they both need a land surveyor to properly describe it. Now (with an easement) you are just paying the lawyer more money to write up the purpose of the easement, and making sure he thinks of everything. (if it's for a garage encroachment, would an easement for the structure include you being able to work on cars? Can you put in a concrete sidewalk later on?) An easement without an added purpose is not an easement; so it needs a lawyer in addition to a land surveyor's description. It takes more legal mumbo-jumbo to write an easement and all it's terms than to do a lot line adjustment. If you have both owners' agreement to adjust the line, it's a much cleaner, more efficient, and more permanent transfer.

I hope you can talk these guys out of it.

I'm sure that there are some circumstances were an easement would be a good solution but if you have a recently constructed structure over a line, and a zoning bylaw that says there should be some setback, an easement isn't going to get it done.

Also, the area in question would be in the permanent exclusive possession of one party, and on the tax bill of another. I can't see that being equitable. Especially if the area was large.

Norman Oklahoma, post: 340669, member: 9981 wrote: but if you have a recently constructed structure over a line, and a zoning bylaw that says there should be some setback, an easement isn't going to get it done.

Especially true with single family residences. In FL most building departments require a foundation survey. If there is any type of horizontal misplacement it has to be "ripped out" and placed correctly. I know, I have paid for several foundation "corrections" caused by me, but corrected by me as well and they ain't cheap. Vertical discrepancies can usually, but not always, be addressed with engineering solutions.

I don't think I'd call it an easement; more like an agreement.

Structures; fences; potential encroachments are temporary. boundary lines and easements are permanent. Well, at least until someone changes them.

Most people don't really care about the alleged encumbrance to their property; it's more important to them; to not lose any property. An agreement to remove the offending appurtenance at a feasible time in an equitable manor; is what most people would want. And if it's not feasible to move it; then an equal land swap is more to their liking.

If they don't want to agree to that; then it's not about the line; it's something else that drives them; usually money...:'( :-O
Or principle...

An easement is a non-possessory right to use someone else's land. A structure like a garage is possessory. A septic encroachment or driveway encroachment can be addressed by an easement; however, an easement for a permanent structure would be a a transfer of a limited fee ownership. The "rental" solution would not work either, because a rental is revocable at any time. A lease could work if your platting authority exempts leases from the subdivision process, but that would certainly complicate any real estate transactions. I would bite the bullet and do the replat. Equal area exchanges usually work well because no one is loosing property.

KLS, post: 340660, member: 4459 wrote: It has always been standard practice in my area to do a lot line adjustment to fix things like fence, shed, etc. encroachments.
Recently the platting authority has been telling everyone that the better thing to do is just get an easement from the neighbor property being encroached upon. They are pushing it as the new and improved way. No surveying required, no corners set because no subdivision occurring. Just attorney description of easement.

The question I would have is what gives the "platting authority" the expertise to unilaterally determine what is best for each situation? The "platting authority" should stick with they are supposed to be good at and advise the public to seek the opinion of a qualified expert who can guide them correctly.

I never heard that you can't have an easement for a structure. I need to do some homework. I know that roads, bridges, and other permanent structures exist on right-of-way easements. Not sure why a garage can't. (Not that I think an easement is the best solution. I agree that a boundary line adjustment and especially if they both end up with the same amount of property is the way to go.

My guess is that it's one guy that, perhaps, works in that particular planning office who had his own "epiphany" one day and figured out that he had the perfect solution. It's amazing what kind of havoc one guy in a quasi-powerful position can cause totally outside of their area of expertise.

It's tiring dealing with people who think they figured out what you do and want to start telling you and everyone else how things should be done.

It's probably because you think these are permanent structures. Any one in a D-9 will tell you different..

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It is important that the tax and maintenance issues as well as the easement use fees are included in the easement agreement.

Paul in PA

Brian Allen, post: 340684, member: 1333 wrote: The question I would have is what gives the "platting authority" the expertise to unilaterally determine what is best for each situation? The "platting authority" should stick with they are supposed to be good at and advise the public to seek the opinion of a qualified expert who can guide them correctly.

While I don't agree with what this platting authority is saying, a Land Surveyor is not necessarily more of an expert in this area then the platting authority. Remember we are not talking about boundary location here. We are talking about title and real estate law. This is not within the area of practice regulated by the licensing board. Many attorneys would consider advising a client in this way as practicing law. Additionally, in Alaska, except for the very small ones, most platting authorities have at least one land surveyor on staff. The un-organised Borough is entirely staffed by Land Surveyors and their assistants. The platting authorities also have legal council at their beck and call. Most of the conflicts between Land Surveyors and platting authorities arise from considerations that fall outside the practice of land surveying. Aside from a good real estate attorney, a good platting officer (they are not all good) is one of the most qualified people to ask advise about the best method to change a boundary line. This is an issue they deal with every day, they draw from institutional knowledge that goes back to the creation of the platting authority and they have access on demand to a team of attorneys.

aliquot, post: 340705, member: 2486 wrote: While I don't agree with what this platting authority is saying, a Land Surveyor is not necessarily more of an expert in this area then the platting authority. Remember we are not talking about boundary location here. We are talking about title and real estate law. This is not within the area of practice regulated by the licensing board. Many attorneys would consider advising a client in this way as practicing law. Additionally, in Alaska, except for the very small ones, most platting authorities have at least one land surveyor on staff. The un-organised Borough is entirely staffed by Land Surveyors and their assistants. The platting authorities also have legal council at their beck and call. Most of the conflicts between Land Surveyors and platting authorities arise from considerations that fall outside the practice of land surveying. Aside from a good real estate attorney, a good platting officer (they are not all good) is one of the most qualified people to ask advise about the best method to change a boundary line. This is an issue they deal with every day, they draw from institutional knowledge that goes back to the creation of the platting authority and they have access on demand to a team of attorneys.

I wasn't inferring that a surveyor would be the best answer to these situations. Each case is different, each of the landowner's situations and preferences are different, laws vary between states, and local platting regulations vary between each governmental jurisdiction. What I was trying to say was that in many cases a joint effort involving the "platting authority" (I'm not even sure what one is, I've never met one), the landowners, their attorneys, and the surveyor would be the best team to come up with a suitable solution for each problem.
Anybody (a "platting authority", or an attorney) that would advise a landowner that a surveyor wasn't necessary to determine if an encroachment exists, and if so, that monumenting and correctly describing any line(s) isn't necessary, is definitely NOT an authority in anything that is even remotely related to real estate and the interests therein.

aliquot, post: 340683, member: 2486 wrote: An easement is a non-possessory right to use someone else's land. A structure like a garage is possessory. A septic encroachment or driveway encroachment can be addressed by an easement; however, an easement for a permanent structure would be a a transfer of a limited fee ownership. The "rental" solution would not work either, because a rental is revocable at any time. A lease could work if your platting authority exempts leases from the subdivision process, but that would certainly complicate any real estate transactions. I would bite the bullet and do the replat. Equal area exchanges usually work well because no one is loosing property.

What about a "Party Wall" agreement where they build one common wall centered on the property line that supports two separate buildings. Usually see them in downtown lots and blocks, done in the early 1900's. Jp

I believe that if two consenting adults wish to solve their boundary problem with an easement, property exchange, rental agreement or other method and they comply with local regulations. Who am i to Judge, as long as they lock the door.