In my hypothetical scenario; there wasn't a transaction between Smith and Jones. Brown deeded lot 4 to Smith, a year later, he deeded lot 3 to Jones.
Jones waited 3 years to throw up a red flag...
As surveyors, we are tasked with finding the facts:
- In the beginning, Brown owns both properties and can provide access however he wants
- The platted subdivision indicates that the only access to lot 4 is through a private easement from the county right-of-way, then along the south line of lot 3, through another private easement.
It will be up to the current property owners to to decide if it is a problem. After all, Jones lived there for 3 years before he decided if he should even look into it.
You can't get in a time machine and go back and fix it; you can't look into a crystal ball and see what will transpire; the only thing you can do is add up the expenses, for each scenario, and see which one will cost the least; so they'll probably do nothing...
Jones bought it as is; why wouldn't the next Rube?
If this situation occurred in Colorado, the implied easement would be an easement by implication from prior use.
@dougie I am required to show all rights-of-way and easements (both express and implied) on my survey plat unless the property owner explicitly requests that I not show them. In this case I would survey the location of the road, but I would not label it as an implied easement by prior use. My narrative would include the facts that you listed in your OP.
why couldn't a surveyor give their professional opinion that it's an implied easement??ÿ Don't we do that with the boundary itself? Surveyor's opinion is evidence, not proof or guarantee.
In this sort of situation, I would say that a survey isn't going to tell them anything that they shouldn't already know. When the lots were purchased, if the purchasers had any sort of title insurance at all they would have had access to a copy of the short plat.
They also would have seen the drive/access between lots 3 & 4 during the purchase process.
It doesn't take much to put two and two together and realize that the physical driveway is outside of the easement. Caveat emptor, as has already been said upthread. This wasn't a hidden issue, it was right in front of them the whole time.
It will be up to the current property owners to to decide if it is a problem.
That's pretty much my view. So will a survey help them? Maybe, but I doubt it will hurt. Having all the facts is generally a good thing.
Jones bought it as is; why wouldn't the next Rube?
Exactly. Having a survey done doesn't prevent them from selling that property "as-is" in the future.
We don't know what the implications are; just that it's there. The Attorney's are the one's with the crystal balls...
As a follow-up to easements by prior usage, back in 2019 I posted on the Colorado Court of Appeals case, Proper v. Greager (827 P.2d 591 1992)
@dougie I don't know. Attorneys argue for legal outcomes that benefit their clients.?ÿ Surveyor's generally give an non-biased opinion of the legal outcome.?ÿ I haven't ever had a judge reprimand me for giving an opinion on adverse possession or easement issues.?ÿ They are very interested in hearing from the surveyor on those issues.?ÿ Surveyor's are trying to use the crystal ball more so than attorneys. Attorneys just want to win, even if they're wrong.
think of it this way. If you're the judge you have been an attorney.?ÿ You know each side attorney is presenting law in such a way to win for their client.?ÿ You don't know who is correct, and you don't want to be overturned (never get promoted that way).?ÿ So you're looking for a non-biased opinion also.?ÿ Helps to inform your clerk's in their research and inform your final opinion.?ÿ Separate the wheat from the chaff. A good attorney can argue just about anything on the facts presented.?ÿ
why couldn't a surveyor give their professional opinion that it's an implied easement??ÿ Don't we do that with the boundary itself? Surveyor's opinion is evidence, not proof or guarantee.
Where the access is located is a matter of practical location and boundary law.
What rights there are to it, and who has those rights, is a matter of title law.
I'm OK with showing where it is and letting the legal teams determine what it is.
Where the access is located is a matter of practical location and boundary law.
What rights there are to it, and who has those rights, is a matter of title law.
Exactly
@duane-frymire I'm not disagreeing with you; I'm just wondering what to say when opposing counsel asks me how I knew it was implied...
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Within any of these instances of potential unwritten rights, until a judge rules on it, to me it's all conjecture. I'd say much depends on how willing the two property owners are to reach some agreeable solution. In a similar situation I was dealing with last year, one of the owners was an attorney and they did a right proper job of turning the entire situation in to one big sh*t show, both literally and figuratively. Didn't have to go down that way. Cost everyone a pile of money and a lot of trees moving the access and nobody was happy with the end result.
Just because I'm paranoid, doesn't mean they aren't out to get me.
@williwaw That means the Judicial System was a success.
No fewer then 6 reviewing County entities sign off on the subdivsion but not a soul looks at what got built. And I think we're overun by useless bureaucracy here in VT.
@dougie the easement arose at the time of the deed transaction between Brown and Smith. Jones took title subject to the easement.
@dougie I guess I don't see much difference between how much land you have rights to under a deed, and how much other land you have rights to under an easement.?ÿ When questioned about a land boundary, my replies regard the evidence I've found, and my opinion of what that means in relation to the law to a reasonable degree of professional certainty.?ÿ My replies regarding an easement issue would be exactly the same.?ÿ Either can be argued.
@lurker?ÿ
The surveyor isn't creating anything, the road is already there, the plat provides intent, the actions of the humans, the only thing that actually matters, are unambiguous.?ÿ I might simply label it as, Lot 4 Access, but I'd slap bearings and distances around it (maybe even a state plane coordinate too ???ñ ).?ÿ
I try to find ways to justify solving problems instead of ways to avoid them.?ÿ This becomes easier the more times I witness the fallout from?ÿ "Let the lawyers figure it out".?ÿ Calling the road that someone is using to get to their house, "access", doesn't frighten me in this particular situation.?ÿ
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Calling the road that someone is using to get to their house, "access", doesn't frighten me in this particular situation.?ÿ
That's pretty much what myself and others have been saying throughout the thread.
But I would not explicitly label that road an "implied easement" on the face of a survey without some supporting evidence beyond the fact that the access road exists.