My clients ownership quitclaims a single lot. The Street adjoining to the West had been vacated. Did the quitclaim of this lot because of the previous vacation include the portion fronting the lot to street centerline? In affect does a vacation act as boundary line adjustment?
bridge
Depends on the deed wording and depends on the state. Most likely a second quit claim is required.
The argument could be made if the deed only claimed measurements and the street was already vacated the fee did not pass. In some states the fee would pass by common law or statute. However a deed encompassing the entire fee is preferred.
A quit claim does not guarantee fee simple ownership and a vacated street does not extinguish third party rights.
Paul in PA
I hope I'm reading correctly. You're client's "estate" included property, outside of the boundary of the lot, that was vacated street dedication.
Two questions: Had the vacation occurred before your client took possession? (was it vacated before he bought the place). If so, what does the conveyance say that gave him title?
Actually, it's a good one for the legal boys. If all he "quit claimed" was a lot & block, and the vacated areas had come into his possession after his purchase of the lot & block, I would think he still retains interest in the vacated areas; although he may not have meant to convey all of his RTI in the entire area.
To answer your question, no. A vacation does NOT NECESSARILY automatically become a part of a platted lot & block, it should either be addressed as a separate conveyance, or at least included in the description. Voila. Clouded title in a heart-beat.
There are lots of variables:
Jerry Broadus' book; WASHINGTON STATE COMMON LAW of SURVEYS AND PROPERTY BOUNDARIES covers all of them very nicely in å¤ XI-F.
I carry this book with me; most everywhere I go...B-)
Great question. I don't know all that legal stuff. My intuition would be that it is part of the lot, but obviously some smarter guys than me are thinking that isn't necessarily so. One thing is obvious, that if you help someone with a quitclaim you should help them with language to make the intent clear, whether it is to transfer the extra area or to exclude it.
The language of the quitclaim is to the effect: ....does hereby remise, release, sell and Quitclaim......all rtheright, title, intereest, claim and demand which the grantor has in and to the real property,....
If the property had the access right, and that access was vacated, it would make sense to me that it goes with the property.
(beware that what makes sense to me may have nothing to do with reality 😉
A few more details: State is Oregon,
Client Primary ownership November 08, 1996, includes ownership both sides of the street to be vacated.
Vacation: December 15, 1997
Quitclaim of single lot fronting above vacation. Quitclaim does not reference above vacation May 12, 1998.
Presently supporting the idea that the vacation in affect adjusted the boundary of the lot to the vacated street centerline.
bridge
I think this settles the question for the State of Oregon. The court notes states vary on this matter.
What is the rulings applicable to other states?
bridge
bridger48, post: 339458, member: 6251 wrote: My clients ownership quitclaims a single lot. The Street adjoining to the West had been vacated. Did the quitclaim of this lot because of the previous vacation include the portion fronting the lot to street centerline? In affect does a vacation act as boundary line adjustment?
Title does pass with the sale of the property, but not because of a "boundary adjustment."
When the street was first created, the underlying fee interest benefited what became an adjoining lot or parcel. When the first sale of the parcel adjoining the roadway is made, common law (and in some jurisdictions, statute law) hold that the title conveyed extends to the centerline of the street. Every future conveyance of the parcel carries title to the centerline. The half width of the street is considered appurtenant (attached to; part of) to the parcel.
When the street is vacated, what was always part of the property encumbered by a public easement (or even a defeasible fee) is simply left unencumbered. A conveyance of the property subsequent to the vacation will continue to include the appurtenant part of the parcel just as it always has.
If the appurtenance has always been attached, the boundary has always followed the centerline. No reason for a "boundary adjustment."
JBS
JBStahl, post: 339492, member: 427 wrote: Title does pass with the sale of the property, but not because of a "boundary adjustment."
When the street was first created, the underlying fee interest benefited what became an adjoining lot or parcel. When the first sale of the parcel adjoining the roadway is made, common law (and in some jurisdictions, statute law) hold that the title conveyed extends to the centerline of the street. Every future conveyance of the parcel carries title to the centerline. The half width of the street is considered appurtenant (attached to; part of) to the parcel.
When the street is vacated, what was always part of the property encumbered by a public easement (or even a defeasible fee) is simply left unencumbered. A conveyance of the property subsequent to the vacation will continue to include the appurtenant part of the parcel just as it always has.
If the appurtenance has always been attached, the boundary has always followed the centerline. No reason for a "boundary adjustment."
JBS
JB/other wise ones, If an agency was to purchase in fee a 2' strip along the frontage of an existing 30' wide 1/2 width dedicated r/w. Would that 2' strip gain the revisionary rights to the 30' dedicated r/w? If so, should not the agency purchase those underlying rights with the 2' strip? Legal references would be appreciated. I have an ongoing debate with legal and public works department within my agency. Thanks, Jp
If they purchased a 2' strip in fee and held the rest of the right-of-way as an easement right, then vacated the "right-of-way" they would also be wise to quitclaim the strip. I am thinking that, technically, the 2-ft strip would not automatically revert back to the owner.
(P.S. if the 2' strip was purchased with federal participation money, then it can become a can of worms. The feds don't want you buying property with their money then giving it away.)
A few minor points. L..
Ownership to Center line is a rebuttable presumption in most States. If I dedicate 50 feet and you live along the other side, a vacation reverts to me.
The 2 foot fee strip is an interesting question. If the fee were purchased as part of the Right-of-way it would likely revert to the owner holding reversion rights. If held for a different purpose it would require a separate vacation.
Could be quit claimed to adjoiner as unusable remnant for nominal market value.
Bridge,
For an extremely comprehensive explanation of road vacation laws and practices in Oregon, download the manual at this link: The Oregon Map
.. and go to pdf page 421 where Fahey is discussed.
"Deed Descriptions Do Not Have to Mention Vacated Streets or Alleys In Order for Title to Pass
Many deed descriptions do not contain wording that includes the rights to a vacated street or alley. In such cases, does title to the vacated street or alley pass to the grantee? The answer is yes. In the case of Fahey v. City of Bend the court held:
ÛÏ...it has been held in some jurisdictions that a conveyance made after the vacation of the street carries with it the street portion of the lot. We concur with this view. No distinction should be made between conveyances made before and conveyances made after the vacation of the adjoining street; in both cases the adjoining strip should be held to pass by the deed in the absence of the manifestation of a contrary intent.Û
And, in McAdam v. Smith,58 the court held that:
ÛÏWhere the description does not mention the street, river or other similar boundary but the deed describes the parcel so that, in fact, it is adjoining, the title to the bed passes the same as (if) mentioned (citing cases).59
The above opinions, however, are on the condition that the street was not separated from the abutting property by a prior conveyance.
Hence, if the deed to lot 1 (figure 13-22) merely read
ÛÏLot 1, Block 2Û
with no mention of the street and in absence of an express reservation of title to the street, title to the street would pass to the grantee of lot 1 (subject, however, to any prior conveyance of lot 1).
The court in the McAdam v. Smith case reasoned that title to the street should pass in order to ÛÏprevent the existence of innumerable strips and gores of land, along the margins of streams and highways to which title, for generations, shall remain in obeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring tip Û÷to vex and harass those, who in good faith had supposed themselves secure from such embarrassment.Û (Buck v. Squires)"
The 1969 Fahey case, a favorite of mine, was a couple blocks away from my house. It is near the high school and ironically the road was later dedicated back to the public. The city probably paid out the wazoo to get that right-of-way dedication.
I have seen deeds made after a street vacation where one owner had the lots of either side of the street prior to the vacation. So they own, for example, a lot in Block 1, all of vacated street between the lot in Block 1 and the lot in Block 2, and a lot in Block 2. Then they deeded one of the lots and a specific width of the vacated street to someone else and retained the other lot and remainder of the street.
I've seen the same thing happen following an alley vacation. Then the entire alley was conveyed with a lot or two on one side of the alley, but the lots on the other side of the alley were retained.
Those situations would be entirely possible and quite common. Once the street between the two lots was vacated, the two lots, being under common ownership were merged and, technically, no boundary existed between them. Had the owner simply sold one of the lots without mention of the street, the presumption would be that half of the street went with the conveyance. In the situation you describe, the owner is conveying a portion of his entire property (consisting of two lots and the vacated street). The opportunity arises to create a new boundary wherever he desires. Just make sure the description is clearly written to define the new boundary location.
JBS
Situations like you're describing are, unfortunately, too common. To answer the question, we have to back up and review the big picture. You say "purchase a 2-foot strip." A municipality cannot simply purchase land for no purpose. The American land law system abhors the ownership of land by the government and prefers that land be owned privately. The government gets only what they can prove they need.
Their needs include two basic things: (1) corporate needs for the administration of government, and (2) lands held in trust for public use. In the first instance, there would be need for maintenance shops, treatment plants, buildings for government services, etc. In the second instance, there would be need for public roads, parks, open spaces, etc.
So, the simple "purchase of a 2-foot strip" must be identified with it's purpose in mind to determine the quality of the estate they've purchased. Was it purchased in fee title or a defeasible fee title? Dig into the municipal records and you'll find an authorization for the expenditure of public funds for "a purpose." Likely, in the situation described, you'd find they purchased a 2-foot strip of land for the purpose of widening the street right of way. There aren't two street rights of way. The parcel of land which formerly fronted on the street, say 30 feet half width in this instance, now fronts on a street with a 32-foot half width. When the street, being appurtenant to the adjoining property, is vacated, the adjoining property gets the reversion.
These rules of law were developed with the very purpose of eliminating the possibility of strips of worthless land from being formed when the public use is no longer necessary. The private owner is compensated when the public takes the strip for their use and the cost of the taking is the cost of the use. When the public no longer requires the use, the property automatically reverts to private ownership. There is no deed required for the reversion. The public, upon execution of the order to vacate, automatically gives up its reasons to hold the property. They have nothing left to convey.
Check out this case: Falula Farms v. Ludlow
JBS
Thanks guys! JB once a great answer to a complicated subject. Thanks for taking the time to answer. I'm trying to keep the Courts out of the r/w we acquire (in the future). It is very difficult to do when working with Engineers and monies that come from outside sources as Tom spoke of. I believe the Prof. Land Surveyors of Oregon are looking for speakers for our January conference. I would love to hear you again.
Thanks, Jp
The centerline of the street may or may not be the new boundary depending how the subdivision was created. If it's a street on the outside of a subdivision and a new subdivision is created along an existing street then the newer lots don't get any of the street.
Sometimes subdivisions abut along say a section line, one side may get 40' the other 20' or the section line may be at an angle to the street meaning the lots on each side get a new line at an angle and with different distances.
The vacating public entity doesn't get any say who gets what when it's vacated. Their only involvement is to give up their interest, the adjoiner already has his interest.
There is no need for quit claims, or any deed from the city/county/state.
I have a city that charges 2$ a sq.ft. for a requested vacation, free for a vacation requested by the city and the county doesn't charge for either type and says per statute they can't.+o(
Apology for the hijack. Little twist to this interesting thread.
Let's say a municipality acquires a ROW for road purposes, but at a later date vacates the road ROW during the course of a platting action as it was later deemed as being unnecessary, however during the time the ROW was held by said municipality, permits were granted for utilities to be located in that road ROW. The fee ownership of the ROW has now been merged back into the parent parcel and said ROW no longer exists. Where does that leave the utilities if during the course of the platting action no easements were granted authorizing their occupation? Are they in trespass? Me thinks not.
I agree. If it was a purchase "for right-of-way purposes" that would make it an easement and reversion rights would apply. But if it were worded as though it were a full-fee purchase that they can do with whatever they want, and if they paid full fair market value, I would think it best that they quitclaim that to the adjoining owner to remove all doubt as to their intent.
