I completed a research project a few months ago. My client bought a 38 acre parcel in the early 80's. During the period between the time they bought it and the mid 90's, they sold it off in various parcels (about 25 separate parcels), all by deed, and an overall map that was never recorded. They thought they had sold all of the land off but still received a tax bill for 4.65 acres every year. That's where I came in. Find the 4.65 acres.
I found it. The manner in which the land was sold off left my client with fee ownership of the land underlying the road that gave access to all of the properties. That is what they've been paying taxes on for the last 20+ years.
Now, yesterday, I receive a call from one of the land owners who purchased one of those parcels years ago. My client has apparently contacted the current landowners there to offer to sell them the land that lies under the road adjacent to their parcel. Each parcel has easement access along the road to their parcel. He wants me to map the portion of the road adjacent to his property so he can buy it from the original owner.
I think he's wasting money but is it my place to tell him that he has all the access he'll ever need? Wouldn't I be financially harming my original client? What would you do? Tell him? Keep your mouth shut and just survey the road like he wants?
I wouldn't do anything. People make poor decisions all the time and it's not our place to right ALL of the wrongs and inequities in this world. If a grown man wants to buy a tract from another grown man, and they exchange valuable consideration for it, and they need me to facilitate it, then I'm in no way in collusion to screw someone over. I'm helping facilitate a land transaction. "A fool and his money are soon parted."
The guy is worried about it .
Ease his mind ,lighten his wallet and sleep well 🙂
Think of it another way - You survey that portion of the 4.65 acre tract which joins the man's parcel and say it comes up to 0.25 acres. He pays $1000 for it because land is going for $4000 per acre (insert your own values here). Your client keeps his property for 10 years and the price per acre doubles. He sells his original tract along with the 0.25 acre portion of the road he bought. That acreage in the road is now worth $2000 - did you do him a favor or not by facilitating the sale? We won't even get into the possibilities of leasing the minerals, but I would advise him to get the minerals to the land in leveraging the sale.
There again, I guess a lot of it would depend upon the amount of land to be gained against the cost of survey, closing costs, filing fees, etc.
Since all property owners are servient to the last estate (dominant), suggest that they all get together with an attorney to dedicate the land to the county. They'll be free of a tax liability that could encumber their own estates, and will still have perpetual access to the right-of-way. You still get to survey the access road to document the dedication.
The most simple remedy would be for the client to deed the road to the county or whoever maintains the road.
There are many slivers of properties along rural roads that are still under the parent tract ownership and the owners are long gone and removed from the rest of the property.
This happens because there are many that do not want to own property and pay taxes on property under roadways.
Also, the parent tract owners cannot be expected to pay taxes on land that does not serve any purpose for them anymore.
They would have to install a toll on the road to make money to pay those taxes.
In time the sold tracts should become owners to the center of the road whether they want the property or not.
0.02
> Since all property owners are servient to the last estate (dominant), suggest that they all get together with an attorney to dedicate the land to the county. They'll be free of a tax liability that could encumber their own estates, and will still have perpetual access to the right-of-way. You still get to survey the access road to document the dedication.
That was my first recommendation to my client. They didn't like it so much. I just received a call from another neighbor as well. Looks like they are all involved and want to obtain ownership of the adjoining road. There are some mineral rights involved as well. I guess I'll map it out and let them go whichever route they wish.
There is value in removing potential Title issues. The route they go may not change day to day living, but it will improve marketability of title.
I would NOT recommend dedication without some serious research. Many municipalities will require the road meet their specs prior to acceptance. That can mean changing the nature of the community and devalue the property.
I would survey it for him in a heartbeat. ..
A couple of comments:
I don't think a road dedication operates as a fee-title transfer. So the road could be dedicated to the city or county, and, if they accepted it, they would take over maintenance of the roadway but the underlying land would still belong to the owner. (see qoute below) However, I would hope that they would take it off his tax records.
Second, if the guy has 4-point-something acres that is encumbured in total by a roadway or other easement rights, it should bring the value of the land down considerably. It has no real resalable value. If he is paying for land 100% encumbered by an access road, he should at minimum request the county to re-evaluate its value and get some kind of evidence as to whatever it's worth. (maybe ask an appraiser how much they would value that part of some property that is encumbered by a right-of-way.)
On a quick search I found a post "Florida Attorney General Advisor Legal opinion" that says in part:
"The effect of a dedication does not operate as a grant of the dedicated property but rather by way of an estoppel in pais. That is, the legal title to the property remains in the grantor (or his vendees) while the public takes the beneficial use of the property. Effectively, then, the fee remains in the grantor (or his grantees) while the public acquires only a right of easement in trust, so long as the dedicated land is used for the intended purpose of the dedication. The grantor (or grantees--abutting lot owners) is precluded from using the property in any way inconsistent with the public use."
Florida attorney gneral Advisory Legal Opinion
But would the County need to accept the road? What if
Could the land be dedicated, yet still maintained by a private entity?
Or would this become a Class VI highway? At which point, the fire and police chief's may decide to not provide service to those fronting on the Class VI.
Class VI around here is defined as :
Class VI, Unmaintained Highways, consist of all other existing public ways, including
highways discontinued as open highways, and made subject to gates and bars, and highways not maintained and repaired in suitable condition for travel thereon for five (5) successive years or more..."
Dedication may have more ramifications.
> .... My client has apparently contacted the current landowners there to offer to sell them the land that lies under the road adjacent to their parcel. ...
Sell! Sell? What chutzpah! Your client should consider himself lucky to be able to quitclaim his interest for "other valuable consideration".
You client could just refuse to pay the taxes and let the county foreclose.
Around these parts it is the buyers responsibility to conduct "due diligence" and make sure of certain facts before they buy. Case in point in your situation.
I think I'd tend to tell them both (written) the consequences of their situation, that you can fix it, and this is what it will cost. Otherwise, nobody has to do anything and your original guy keeps paying taxes on somebody elses road. Don't make their problem your problem.
Seems odd that in any state in the last 30 yrs somebody can split by deed 25 parcels off the parent. Somebody wasn't thinking back then, but somebody is now. As they say regarding most shortcuts in such things - pay now or pay later. It seems later is now.
I wouldn't be afraid to just walk away either.
1. Was the road already existing when they sold the lots or was it built as part of the development?
2. Who is currently maintaining the road?
3. Were there any S/D regulations in effect in the 1980's? If so, did the County give any building permits?
If the County would except the road dedication without requiring that it be brought up to current standards, that would solve everyone's problems. It would appear that if the County has maintained the road and it was not done individually by the Property Owners or the developer that your Client could simply Quit Claim the area between the right of way and the centerline of the road to each Owner and the road would be considered a road by prescription. This could be a case of the original surveyor creating a nonexistence right of way where one has never existed and doing everyone involved a disservice.
>Your client could just refuse to pay the taxes and let the county foreclose.
The Maryland courts have repeatedly held that the common law presumption that title is carried to the center of the road applies to private roads as well as public. Of course the contrary can always be shown.
> Keep your mouth shut and just survey the road like he wants?
As a surveyor, isn't your first obligation to determine whether the land within the road has already been conveyed by operation of the common law rule? That is, if all of the land adjoining the road was sold by metes and bounds calling for the road as a boundary, either directly or by implication, and there was no explicit reservation of the land within the road from the conveyance, then under the law of your jurisdiction would the road strip be held to have already been conveyed when the adjoining tracts were sold, subject to an easement for access?
If the original grantor is merely getting a tax bill for the road strip, that doesn't mean that he actually has any title to convey, does it?
I tend to think you're on the right path there Kent. Seems odd that a 30 yr old easement isn't somehow covered somewhere, especially if somebody was maintaining it. Our obligation as surveyors IS to protect the public, but if some guy keeps shooting himself in the foot for all those years... what is the solution? Take away his bullets or tell him to quit paying his taxes and shoot the cat instead.
I don't offer legal advice on many matters, and this seems like a perfect time to stay quiet.
Somebody took shortcuts a long time ago, and now the piper wants his due. That is likely the revenue starved county looking for $$$
> I tend to think you're on the right path there Kent. Seems odd that a 30 yr old easement isn't somehow covered somewhere, especially if somebody was maintaining it.
Isn't it fairly plain that someone at the taxing authority just subtracted the acreages described in the various deeds by which the original owner sold parcels and, realizing that the total fell 4 acres or so short of the acreage of the original tract, concluded that Mr. Original Owner still owned 4 acres?
> Our obligation as surveyors IS to protect the public, but if some guy keeps shooting himself in the foot for all those years... what is the solution?
Well, in some jurisdictions, he'd be in a position to get a refund on the taxes paid by mistake.
The key point is a question that a surveyor in practice in that jurisdiction should know the answer to better than 95% of the attorneys in practice, i.e. whether the common law rule would apply to the strip of land in the private road once Mr. Original Owner had sold all of the parcels into which the tract was divided and did not retain ownership of any other land to which the road strip could provide access.
So, if the answer is "You probably don't actually own that strip of land in the road anymore", then the problem becomes simply one of helping the tax authority straighten up its accounts and that would depend upon whether land used for private road purposes (as I understand this one to be) is taxable or not.
Probably the most useful surveying service (if the taxing authority hasn't already done it) would be plotting out all of the parcel descriptions and calculating from the record descriptions what the share of the land in the road each parcel would have if the common law rule applied. That way, they can straighten up their accounts and Mr. Original Owner wouldn't get a tax bill any more.
> Isn't it fairly plain that someone at the taxing authority just subtracted the acreages described in the various deeds by which the original owner sold parcels and, realizing that the total fell 4 acres or so short of the acreage of the original tract, concluded that Mr. Original Owner still owned 4 acres?
But generally, they carve out the parcels, for their assessor's plats. It seems like as the assessor did this, he would see that the parcel left over looked a lot like a road corridor and not something you could put any other types of improvements on. (but I agree with you)
> ...a surveyor in practice in that jurisdiction should know the answer to better than 95% of the attorneys in practice....
Man oh man did you hit the nail on the head there pal. I think it qualifies for just about any zip code I've ever been in, and worked in.
I've gotta get to Austin and buy you a beer (or whatever). Cheers. Maybe Mr Roadhand can join us... I'll be the guy in the Red Wings shirt... just to bug him 🙂
> But generally, they carve out the parcels, for their assessor's plats.
I'd say that it depends upon the jurisdiction. Even today in some rural counties in Texas the assessments are made on acreage out of some original grant - just acreage and no mapping of the parcels other than whatever subdivision maps are of record. Admittedly, this should be rare in the digital age, but I wouldn't rule out the possibility.
It's equally possible that the tax assessor just didn't know how to properly deal with the situation and was willing to send a tax bill for the road strip to anyone who would pay it.