Lawyers...

You're on the right track by seeking to speak directly with the fussy lawyers themselves. When you do, the best strategy is to first be a good listener. Ask them what their goals are and why they think this is the best approach. Then, in professional but non-technical language, explain its drawbacks and why you recommend something different. You want them to see why your method would better meet their goals, not yours.

But decide first off whether you'd be willing to bend. If not, and they remain intransigent: sometimes it's best to, in a civil, professional manner, just say no. Explain why you or your firm just doesn't do things this way. Stick with it and suggest they find someone else. In the long run, it will feel good.

> You're on the right track by seeking to speak directly with the fussy lawyers themselves. When you do, the best strategy is to first be a good listener. Ask them what their goals are and why they think this is the best approach. Then, in professional but non-technical language, explain its drawbacks and why you recommend something different. You want them to see why your method would better meet their goals, not yours.
>
> But decide first off whether you'd be willing to bend. If not, and they remain intransigent: sometimes it's best to, in a civil, professional manner, just say no. Explain why you or your firm just doesn't do things this way. Stick with it and suggest they find someone else. In the long run, it will feel good.

Oh I hear you on the approach to take - I like this site because it gives me a chance to vent, and THEN write an appropriate response to the client, attorney, etc.

I also agree with you on saying no. The unfortunate part of this whole situation is that the design company is one we like to work with, and we'll be saying no to them as well as the fussy attorney.

As the pavement does not exist, and as you have no control over where it will actually be placed, you can not do what they want. A little like putting a cute little bonnet on a baby that has yet to be born.

You can only write a description of where the easement will limit the placement of the pavement. Then it is up to everyone else to make sure the pavement does not cross the easement boundaries.

Could you get a cad file of the design, generate dimensions and stake the driveway-parking area yourself? Does the attorney want the easement specifically qualified to the edge of concrete, or is that just what they are telling you they want to use as the limits of the easement?
While the initial request to write and easement to nonexistent concrete that doesn't have any dimensions is humorous at best, there might be a way to accomodate all conserned and look good doing it.
DJJ

I'm just not feeling the outrage. Of course you can't write the description "along (or with) the edge of pavement" since it's not there yet. But this is not an unusual situation where an easement is created for a future parking lot or driveway. Unless they ask you or another surveyor to stake the easement when the paving is placed, they'll have a hard time putting it in the right place, but that's the way it always is.

Oh, I just read the original post again. The lack of dimensions of the proposed easement areas is a problem. Somebody's got to tell you in writing where and how big or even authorize you to scale them off the plans, but then once the areas are described, they need to be marked in the field so the paving matches the descriptions and plans.

Sounds like the attorney might be right on this one as far as guaranteeing access to the site. What is being misinterpreted here is the reference to the plans and paving for more than a guide for the location of the easement. They only want an easement at or near the proposed ingress location. Should not be a big deal except what is being communicated.
jud

A little like putting a cute little bonnet on a baby that has yet to be born.

The Cow above is right on. And funny too.

Good one!

N

You could try the pipeline company approach. I generate easement plats for pipeline companies with great descriptions but tucked at the bottom of the agreement is states "once layed the centerline of the pipeline will be the centerline of the easement."

You could do your best to describe where the pavement should be then at the bottom state once constructed the edge of the payment becomes the easement limits.

If the client was insistent on doing this before actual construction, (and there may be reasons why they are) we would propose to create an easement based on scaled location of the improvements, but the improvements would not be referenced in the description, and would not be controlling. Our fees would be for:

1. Writing a metes & bounds description of the two easements.

2. Producing a Map showing the easements, clearly showing the "proposed construction".

3. Staking the easements in the field. (This could be done either before or after construction.)

If, after construction, the client wanted to change the dimensions of the easements,
we would field locate the improvements at an additional fee, revise the description, revise the map, and restake in the field, all at an additional fee.

Two trips to the field would be costly, but revising maps and descriptions is usually pretty quick work.

I might not be understanding the problem yet. If there is a designed roadway and they need a description and an easement deed before they can build it, you need to write the deed. You might need to pin someone down for a precise location, or you might have a "width" added to the description and notify them that they have to stay inside of the written easement, but it can be done, and often times must be done before you can build the road or install the utility (or whateve the easement is for). You need to know enough about the plans to write that easement description.

I don't know that you can really just say that "wherever the pipe is laid in the ground will become the easement". That does not meet the minimum standards for a legal description in my opinion. What if the installer then went and installed the pipe where a house is supposed to be built or extremely far from where you described it to be? For a legal description to be adequate, "such must be complete enough that a particular parcel of land can be located and identified". (that's from "Blacks Law" but I have seen similar quotations from case files and other legal definitions). I don't think you can use a future improvement to be the "monument" of your description.

I have a strange easement here in Nome. It states that a 40' wide utility easement exists, centered on wherever the pipe is located. If the pipe mves East, so does the easement. Further more, if the Gold Co. wants to mine where the pipe is, they will pay to move it. Weird!

-JD-

Jud,
Whenever I have seen an easement calling to be centered on wherever a pipe is, it is my presumption that it follows where the pipe was the first time the easement was written. I would have a hard time believing that a pipe company has an easement whenever and wherever they decide to move the pipe to. Their lawyers might be making that claim, but I wonder if a judge would.

Of course I don't have any case law or legal knowledge on the matter. Only my opinion.

> I would have a hard time believing that a pipe company has an easement whenever and wherever they decide to move the pipe to..

probably applicable only when the pipe is moved by God or one of his friends.

Just write the metes & bounds rounding to the nearest rod and using only cardinal directions and reference the EP.

>
> probably applicable only when the pipe is moved by God or one of his friends.
>
> Just write the metes & bounds rounding to the nearest rod and using only cardinal directions and reference the EP.

So....only God or TDD can move the pipe.

I agree with you. Usually an easement like that calls for the centerline of the pipe and enough area each side of the pipe to get in and conduct maintenance. The pipe should be laid, the location recorded and it should never be moved outside the easement the first time it is written.

I thought I had posted a comment about, "Over and Across", power line easements but it mush have been my imagination, yet you responded to it, strange.
jud

> I might not be understanding the problem yet. If there is a designed roadway and they need a description and an easement deed before they can build it, you need to write the deed. You might need to pin someone down for a precise location, or you might have a "width" added to the description and notify them that they have to stay inside of the written easement, but it can be done, and often times must be done before you can build the road or install the utility (or whateve the easement is for). You need to know enough about the plans to write that easement description.
>
> I don't know that you can really just say that "wherever the pipe is laid in the ground will become the easement". That does not meet the minimum standards for a legal description in my opinion. What if the installer then went and installed the pipe where a house is supposed to be built or extremely far from where you described it to be? For a legal description to be adequate, "such must be complete enough that a particular parcel of land can be located and identified". (that's from "Blacks Law" but I have seen similar quotations from case files and other legal definitions). I don't think you can use a future improvement to be the "monument" of your description.

Without realizing it, you have addressed the problem. The "fussy" lawyer wants a metes and bounds description drafted using the proposed EP as the monument. They have refused to use any of the other suggestions made by the PM in my original post, including a CL and width definition.

I don't really have a problem writing a description for an existing EP; we do it often enough when writing a prescriptive easement where the edge of pavement or gravel is the edge of usage.

But now we're afraid that the minute the instrument is executed, then the contractor building the drive and parking will be held to a standards he could never meet. Could we be held liable by the contractor or the opposing attorney if the location of the drive versus the recorded easement is questioned?

Won't your easement have a width? You should advise a width that is practical for the contractor to stay within. You should (all my opinion of course) write your description calling to boundary marks and bearings and distances ie: not calling to the centerline or edge of asphalt that isn't there. It is then up to the contractor to stay inside of the easment you wrote. You should also put monuments in the ground and preferably call to those monuments in your description. The contractor must stay inside those monuments.

You could meet with the contractor and/or the lawyer and make sure where you are proposing monuments are agreed-to by them.

Did that help? By the way, this is done all the time where easements or parcels are acquired before the utility or road is installed.

Maybe I am still misunderstanding. Is the lawyer asking you to write exactly to the edge of the asphalt without any "wiggle-room". Even if he is, I would not make any calls to asphalt that isn't there at the time of the description. (Maybe you could actually monument a 10' offset and make your description call to an offset from the actual monuments you set).

Why isn't it practical? The parties want to limit the construction to what is shown on the plan, as interpreted by the surveyor. No reason they can't do that. Your interpretation of the plan becomes fixed in your description. You call for the plan and the proposed or design EP, and that becomes a record monument fully described by the legal description. Suggest to them that they better have you lay it out because if it's not built that way then it will be an encroachment. Suggest that it will almost certainly encroach if they don't have your firm perform the layout. After it's built you perform an as-built and record it showing that built equals plan. Then you have memeorialized the location of the original stakeout and it should be controlling in any future retracement.