Hello all,
I recently completed a survey for a client with an angry neighbor who is trying to limit my clients access to his property. My client, I'll call him B, owns Lot 4. The new neighbor, I'll call him M, just purchased Lots 1, 2 & 3. His deed also includes Outlot A, which is a private road. This road has never been developed. The plat clearly states that Outlot A will be built and maintained by the owners of the subdivision.
M asked me to locate property pins at the time of his purchase. I met him and his wife on site with the sellers and did a pin locate to verify B's fence location. I did not set up an instrument, but I was able to find enough pins in place to verify the fence he was concerned with was on the property line. Most of the pins I found were bent, but still in the ground. One pin in the cul-de-sac was lying horizontal. B had been clearing some junk and weeds off of the adjacent lots with a tractor and probably pulled it out. It happens.
I quoted M a price and headed back. A few days later B calls me and says that M's lawyer has sent him a letter accusing him of moving the pins and that he is not allowed to drive on Outlot A. I tell be that I had been to the property and showed M where the pins were, and that I felt the existing pins had not been moved. B also informs me that M has hired a different surveyor to set his missing corners. I tell B to talk to the surveyor and see if he will set his missing corners as well while he is there.
B was not able to talk to the other surveyor (he had been fired by M) and decided to hire me. I surveyed the property, found that the pins I had located earlier were in fact correct, and set the missing corners. I was waiting for B to pick up his copies and pay when I get a phone call stating that the sheriff was on site and he needed me there. Longer story short, M had a different surveyor on site, M was stating that the fence was on his property, and that B had no right to drive on Outlot A because it was in the legal description on his deed.
I am curious what you guys think about the rights to Outlot A. Does M own it? Can he limit B's access?
(Sorry if I rambled. This is my first real post.)
What does B's deed say? Does it say he has ingress/egress rights over Outlot A?
I would first review B's deed to see if it also conveyed interest in Outlot A.
B's deed is only for Lot 4. However, the acreage that the county is taxing him on includes his frontage of Outlot A. The plat lists two acreages for each lot: one for just the lots, and one including the road.
Im guessing that the Highway has a restricted access for the adjoining lots and that when the lots were created, approved by the highway department local planning etc that the obvious intent was to access all lots via private shared road. These situations usually have a separate shared driveway agreement that is also recorded or part of the deed. I find it pretty hard to imagine a situation where "B" has no access to the Road. This situation screams "what is the original intent" if you can't find that in previous documents recorded or, plan sets approved by the local jurisdiction, then I'd guess you better go looking for the original owners.
A couple of notes from the plat...
"Outlot 'A' is dedicated to the homeowners association as a private roadway"
and
"Construction and maintenance of the private road is the full and complete responsibility of the property owner(s) of this subdivision in perpetuity. The county assumes no responsibility or liability regarding the private road, and will not perform maintenance operations, including snow removal."
I am sure that the intent of the subdivider was that all lots should have access along the road. If Outlot A was sold by the subdivider, could B have an easement?
Tell M that he's being a brat and a jerk and that he should be a good neighbor and work with "B". They'll spend much more money than it's worth in legal fees and court battles than if they learned to be grownups and to look out for their neighbors.
Of course I can talk big on a web site. Giving legal advice in this situation is not a good idea. You did however ask our opinions. I don't know for certain. There might certainly be some kind of prescriptive easement that has ripened if it has been used as access for a number of years depending on your state laws.
I would search the public records to see if a document was recorded that "accompanied" the plat to define the easements, road use, restrictions, etc.
It would appear to that M just got conned by the developer. If he bought 3 lots in a 4 lot subdivision he would have 75% ownership of the outlot without it being in the deed. Also if the sale to M occurred after B purchased then the outlot could not be sold without B signing off on his interest in the outlot.
In AZ if the lots were sold by reference to a subdivision plat i.e. by lot number there would be a private RW Easement over the road. I do not know CO laws.
This seems to be a situation for an attorney to clear the air.
David
> B's deed is only for Lot 4. However, the acreage that the county is taxing him on includes his frontage of Outlot A. The plat lists two acreages for each lot: one for just the lots, and one including the road.
What the county chooses to tax is a red herring. Pay no attention to that.
Larry P
Shame On You For Not Having All Four Deeds
You are asking us to speculate to what should be clearly in front of you on those 4 deeds.
Without such I believe:
The private road is owned by a homeowners association of which Lot 4 has a 1/4 interest and shares 1/4 the road cost.
Lot 4 may have underlying fee title to about 1/2 the road, so what.
Whether or not M's deed describes the whole road he does not own it in fee since it belongs to the homeowner's association, i.e. the 4 lot owners.
I believe B should only improve as much of the 1/2 road in front of him he needs for safe access. M may not utilize that portion of the road until he reimburses B 3/4 of his expenses. If M extends the broad to the cul-de-sac B owes him 1/4 of the expenses.
I would in fact be more concerned with the lack of clear access from the private road to Highway 7.
Paul in PA
Shooting from the hip here. And hedging because the applicable laws probably differ from State to State and from local jurisdiction to local jurisdiction.
Common sense suggests that the road should have never been identified as an Outlot in the first place and simply labeled as a private drive to be owned proportionally by all lot owners in the subdivision, not just those abutting said road. Therefore, the County should be assessing a proportional share of the taxes for said roadway to each lot in the entire subdivision. This is a case of having an undivided interest in the entirety. No specific portion of a road actually belongs to any specific lot.
If M got screwed and actually paid money for the Outlot, his beef should be with the crook who sold it to him, not the innocent other owners of lots in the subdivision.
This makes as much sense as an owner of a condo unit trying to claim the entire hallway serving multiple units.
Follow the chain of title back to the first deed from the developer granting out Lot 4. There may be a mention of the easement that wasn't carried forward in subsequent deeds. Also look for CC&Rs around the time of the subdivision which may create the easement.
If nothing else I would think there is an implied easement.
> A couple of notes from the plat...
>
> "Outlot 'A' is dedicated to the homeowners association as a private roadway"
>
> and
>
> "Construction and maintenance of the private road is the full and complete responsibility of the property owner(s) of this subdivision in perpetuity. The county assumes no responsibility or liability regarding the private road, and will not perform maintenance operations, including snow removal."
>
> I am sure that the intent of the subdivider was that all lots should have access along the road. If Outlot A was sold by the subdivider, could B have an easement?
> "Outlot 'A' is dedicated to the homeowners association as a private roadway"
Was the homeowners association created and set up? If so those documents are pretty particular about the HOA rules operations. etc. Need to find them if they exist.
> If Outlot A was sold by the subdivider,
If Outlot A was dedicated to the HOA as recordation of the plat then can subdivider even sell what he does not own after the plat recorded? ........
Another question though, is most developers retain HOA control until a majority of lots are owned or certain requirements are met by the HOA docs (Back to those HOA docs again) so if developer was is essence the HOA did he properly sell as controller of the HOA (if it was created) the Outlot A? I doubt HOA documents would allow the sale of common HOA controlled property. Even if all that did happen somehow through some proper channel then through the intent of the Plat owner B should have a right to utilize the private roadway.
Think of B's lot like a condo unit. The HOA owns the common area, IE hallways. The HOA can not sell then restrict that hallway to the access of the condo.
Seems some deed document research would clean all of this up quickly.
1. Would M have any other access if not for the Private Road?
2. When was the plan approved? Did zoning require that Lot 4 have some or all of that long stretch of frontage?
3. Is the road partially constructed? Does Lot 4 enjoy access over the area? Did it before the sale of Lots 1, 2 and 3?
4. Is it normal for lot areas to be calculated to the centerline of the road?
5. What is the intention of the 10' easement around every line? Who are the intended grantees?
6. Does the road even make it to the State Highway?
If it's on the subdivision plan and missed on a deed and the approval was based on the plan, I would assume that Lot 123 could not remove Lot 4's ability to access. Perhaps with Lot 4's consent and that of the Planning Board (or equivalent).
No homeowners assoc. was ever created. This property was previously a 20+ lot subdivision from the 70's. I believe the plan was to have a mobile home park. The current configuration was platted in 1996 and approved by the county.
I agree. M is being a jerk. He has got my client riled up and now they will not communicate.
> 1. Would M have any other access if not for the Private Road?
No.
> 2. When was the plan approved? Did zoning require that Lot 4 have some or all of that long stretch of frontage?
The planning department signed off on the plat.
> 3. Is the road partially constructed? Does Lot 4 enjoy access over the area? Did it before the sale of Lots 1, 2 and 3?
There is an asphalt apron from the highway to the right of way fence, B has laid in some gravel and recycled asphalt up to a parking area next to his house. The rest of the property has been vacant (except for an old block building) and B has been maintaining it for the previous owners/subdivider.
> 4. Is it normal for lot areas to be calculated to the centerline of the road?
Areas to the center are not common, but it makes sense in this situation.
> 5. What is the intention of the 10' easement around every line? Who are the intended grantees?
The easements are generic for utilities and drainage. Typically the gas, electric and telephone will run in the easement.
> 6. Does the road even make it to the State Highway?
The road is connected to the highway right of way.
There is not really a developer in this situation. The previous owners were a little old couple. B purchased his lot from a previous owner that built the house on Lot 4. That owner bought it from the subdivider (little old couple).
Shame On You For Not Having All Four Deeds
There are only 2 deeds: one for Lot 4, and one for Lots 1, 2, and 3 (that includes Outlot A). There is only one residence (Lot 4) built around 2000.
My $0.02
If the subdivision plat has a signed and notarized owners consent and dedication then with the execution of the plat a simultaneous conveyance occurred.
The lots in their new configuration would have been in the name of the subdivider and the private roadway would have been in the name of the homeowners association.
It appears to me that if anyone other than the homeowners association conveyed the private roadway tract that they would have had no right to do so.