If Brown owns 2 adjacent lots; lots 3 and 4, and he sells lot 4 to Smith; 1 year later he sells 3 to Jones. Today, 3 years after that, Jones calls and says he wants a survey.?ÿ
And it looks like this today
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?ÿWill a survey help the Jones's? Or the Smith's for that matter?
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I've ran into similar situations before; and I struggled to help them (either Jones or Smith).
If you've been surveying for any length of time, I'm sure you've seen this before.
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What did you do?
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TIA
Dougie
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The logical concern is that Lot 4 is using an access that crosses Lot 3.?ÿ The question then goes to how this situation came into existence and when.?ÿ Lot 4 technically has access from the cul-de-sac but has chosen not to use it.?ÿ If the only thing produced is a boundary survey, little has been gained.
A slight twist: there's a steepish slope, between the 2 lots, and it was easier to build the driveway through lot 3. They both belonged to Brown, at the time, and he didn't care; he put the drive in with little or no regard to regulations and restrictions.
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Brown owned these lots for a couple of decades; he lived on lot 3 and rented the house on lot 4, the whole time, up until he sold 4 to Smith. He didn't care regulations or restrictions then, either.
when he sold to Jones, he said; buyer has burden of doing a thorough inspection; because he still doesn't care.
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Holy is right, the only thing a survey will do is confirm the obvious; Smith his accessing his property through Jones's property with out the benefit of an easement. What should they do?
- Ignore it?
- Build the driveway where it should've been built in the first place?
- Have Jones grant Smith an easement?
- Talk the folks, accessing their property from 244th St E, into allowing Smith access?
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Ignoring it will be the cheapest; building a new driveway will cost Smith the most; granting the easement will be an encumbrance to Jones, and potentially reduce the value of his property; Talking the users of 244th St E into allowing Smith access might not work, and would be a waste of time.
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and the county filed it with no questions.
if they were sold with mortgages I'd blame the title companies, but cash buyers sometimes just go with the flow and dont care, caveat emptor.
If Brown knew better regardless of his scofflaw attitude might be prosecuted for fraud if he supplied Information for the buyers to rely upon or obfuscation of relative facts that were know to him regarding the county regs etc.
let the lawyers amd the DA Figure it out, but boy?ÿ howdy what a mess.
And where was the city regarding the egress and Ingress to their ROW anyway?
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if they were sold with mortgages I'd blame the title companies
It's funny; in Washington State, the mortgage companies don't care. Either that; or they just got tired of dealing with this kind of crap, and said it's not my problem...
Which seems kind of stupid to me; what if they foreclose, then it IS their problem. But then I've seen short sales that say: "Sold As Is".
And where was the city regarding the egress and Ingress to their ROW anyway?
In this case, it would be the county, and they don't care either; It's private access, that's been there for decades; it's not their problem. They only care about "Public Right-of-Way".?ÿ
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boy?ÿ howdy what a mess.
You can say that again! I see this kind of thing more times than I want to...
The sad thing is; I just get a blank stare, when I tell the client what a mess they have; they don't want to hear it.
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and the county filed it with no questions.
The County doesn't want any liability; if you hire a professional, and they tell you it's "OK", then it's on the professional.
In this case, the plat was created with adequate access, there is even a note (note 5) that says there may be limited building site feasibility due to steepness of slopes.
Then Brown says "I don't care, I do what I want"
In his defense, he did own both lots, so don't tell him he can't.
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I think I??d just flag the corners and line, note the encroachment on the plat, and leave it up to the landowners and their attorneys (if it even comes to that) to figure it out.?ÿ
Implied easement most likely.
Browns takes Smith over the driveway on his property to show Smith Lot 4 and the house. Smith can??t build a driveway across the ??natural buffer area? even if he wanted to, a grant includes everything necessary for enjoyment of the property therefore there is an implied easement on the driveway.
Later Jones saw the driveway (or should??ve) and was on at least inquiry notice of the existence of an easement. Although the easement is not recorded (no constructive notice) Jones can clearly see there is physical evidence of use by Smith.
Jones can use the property as long as he doesn??t interfere with Smith??s right to use the driveway. A boundary survey is useful for that purpose.
@dougie?ÿ
except...in a county if zoning regs exist you can't legally, and the county is the enforcement agency of anything codified, pre or post codification and can only point at the license professional if they filed or performed the work being scrutinized but then again thank you Bill, IANAL, but think like one unfortunately and have worked at a county that was really bad at what they did and left after my year of watching how not to do it and learned.
painful lessons, but valuable for my career and future.
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In Pierce County, and assume other Counties in Washington, have an Innocent Purchasers Clause
It doesn't really do much; other that get the County off the hook.
Bottom line: You should've had it surveyed; or at least consulted with someone that new what they were talking about.
- Do you think the Real Estate Agent knew what they were talking about?
- Do you think the Title Company cared enough to say something?
- Do you think the Bank Cared at all?
So nobody cared until Dougie showed up and now it's a BIG DEAL! It's got to be his fault...
Sad to say, but that's all we can do; it's a lawyer's job to consult (for a fee).
I think the person who is purchasing should protect their interests. ?ÿThat is accomplished by getting a survey and hiring an attorney who represents them at closing exclusive of the interests of others. ?ÿCaveat emptor. ?ÿ
The logical concern is that Lot 4 is using an access that crosses Lot 3.?ÿ
There is an access easement per plat.
The land and cul-de-sac are shown providing the access to Lot 4 but that is not how the existing access is presented via the aerial photo.?ÿ A driveway turns north and crosses almost all the way to the north side of Lot 3 before turning to the east to enter Lot 4.?ÿ It was foolish to plat a lot that is dependent on a very steep driveway per Radar's topo map.
@dougie?ÿ
well hell yeah they're all excited.?ÿ You've got an insurance policy to dig into now, they can go get some money money money......
@mark-mayer for whatever reason, the access to lot 4 is through the natural buffer area. The note says no construction there. Kind of odd. It appears Brown built a driveway north and the east around the natural buffer area.
Mark Mayer has the answer I'd run with. It provides a reasonable justification for solving a problem instead of turning neighbors against one another. This reminds me that I haven't reread Cooley yet this year.
Locate the maintained limits and label it as an access easement.
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@murphy What gives the surveyor justification to label this area as an access easement? Are you suggesting prescriptive rights have created this easement? The surveyor doesn't have the authority to create an easement where one does not already exist.
I agree.?ÿ The platted easement no longer exists when Brown owns both lots.?ÿ Then when Brown sells to Smith, the access to Lot 4 exists on the ground, and if nothing is stated in the deed, it's probably an implied easement, regardless of what the original subdivision plan indicates.
That said, it's a legal issue, not a survey issue at that point.
@lurker it??s not a prescriptive easement.
It is likely another type of undocumented easement called an implied easement. It arises from the Deed transaction between Jones and Smith.
Given the notes on the plat contradict each other, I agree, it's a legal issue, not a survey one.?ÿ ?ÿIf Lot 4 could never impact the "NBA" that covers it's portion of the cul-de-sac, how could it have access??ÿ Also, how did the building permits get approved without the roadway as required in the fire marshall's notes??ÿ?ÿ
