This is more of a legal issue than survey, so it might need to be in a different category...
In July 1968, my clients, Mr. and Mrs. Smith, entered into a real estate contract with Mr. and Mrs. Jones, for a 10 acre tract of land with the Mashel river running through the north portion of it. A gravel driveway and bridge crosses the river through the NE corner of Smiths property. Jones owns the property to the east of Smith and in May of 1989, they grant an easement to Brown (the owner to the north) for the entire driveway, including the portion that runs through the NE corner of Smith's property. The easement is a center-line description, 30' wide; the bearings are to the second and the distances are to the hundredth, but it doesn't fit very well, almost 30 feet at the worst and my client tells me it hasn't changed in 50 years.
So my question is; is this a legal easement? Through my clients property, anyway...
And; can I help my client resolve this issue without getting attorneys involved? They are living on a fixed income and I'd hate to see them throw thousands of dollars at an attorney, for something a shady real estate developer did 40 or 50 years ago.
As always Thanks in Advance for all of your sage advice.
YHS
Dougie
I'm not qualified, but have an opinion anyway.
If the easement is otherwise legal, then the discrepancy of 30 ft does not invalidate it.?ÿ Evidence on the ground of what the parties intended trumps numbers in a document.
Way too many unknowns for me.?ÿ
If the document is structured well the numbers are only there to help you find the road. The only certainty is you do not want to execute a new easement without addressing the old.
Unless folks are angry and cannot be calmed you shouldn't need an attorney to clean it up (if it even needs cleaned up). Of course that depends on your State law and expertise...
Sorry I'm being so vague, I'd like to keep this confidential...
There's no anger involved; other than my client isn't very happy that they have an easement across their property that they didn't grant. They knew the driveway was there, but didn't know it crossed their property until I showed up... They'd like to clean up the title to their property, before passing it on to their heirs, and I'd like to help them keep it simple.
My question is:
Can someone grant an easement across property they don't own? And what do you do if they did?
Thank you.
Dougie
Obviously you can't grant an easement against land you don't own.?ÿ
Edit:?ÿ I had the names reversed in mind when I posted before.?ÿ Jones never owned the part on Smith, so never had any rights there to convey.
But if Brown has been using the driveway since 1989, there is probably an easement by prescription anyway.
We have lots of roads that are not within the easement.?ÿ I have one on my property.?ÿ There is a large rock formation within the easement, so they just cut the road around it.?ÿ As to your question, and I am not a lawyer, but they could not grant an easement over the property of another unless they reserved that right at the time they sold the property that they granted the easement over.
I agree with Bill and Man that if the parties are agreeable, I would try and get things corrected.?ÿ Later the situation can become advisorial and even deadly.
my 2 cents
Not a lawyer, don't want to be a lawyer, and didn't stay at a holiday inn express last night.?ÿ But I'll still give my opinion.
But no, of course someone can't grant an easement over land they don't own.?ÿ But I'm thinking that Browns probably now have legal rights to the driveway over your clients.?ÿ They may have not known the driveway was on there land, but it is there obligation to know where there land is and stop all encroachments as they occur.?ÿ Due to the amount of time that the driveway has been used without any attempt to stop them, I would vote that there is at least a prescriptive easement along the road now.
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This is more of a legal issue than survey, so it might need to be in a different category...
In July 1968, my clients, Mr. and Mrs. Smith, entered into a real estate contract with Mr. and Mrs. Jones, for a 10 acre tract of land with the Mashel river running through the north portion of it. A gravel driveway and bridge crosses the river through the NE corner of Smiths property. Jones owns the property to the east of Smith and in May of 1989, they grant an easement to Brown (the owner to the north) for the entire driveway, including the portion that runs through the NE corner of Smith's property. The easement is a center-line description, 30' wide; the bearings are to the second and the distances are to the hundredth, but it doesn't fit very well, almost 30 feet at the worst and my client tells me it hasn't changed in 50 years.
So my question is; is this a legal easement? Through my clients property, anyway...
And; can I help my client resolve this issue without getting attorneys involved? They are living on a fixed income and I'd hate to see them throw thousands of dollars at an attorney, for something a shady real estate developer did 40 or 50 years ago.
As always Thanks in Advance for all of your sage advice.
YHS
Dougie
While the original owner (Jones) can not grant an easement across the property they sold, the time involved may have created an easement by continued use.?ÿ This will be dependent on state laws and prior court decisions.?ÿ The fact that your clients only recently became aware of the problem does not help their situation.?ÿ The situation needs to be handled through attorneys. An attorney for Jones and one for Brown, Smith may not need to be involved. ?ÿAll parties need to be aware of the process and Smith may want to be represented just to insure there is no future adverse action against them.?ÿ The best way may be to grant a corrective easement to Brown across only the Jones property. The new easement should reference and abandon that portion of the original easement now on Jones.?ÿ
You can't create an easement over someone else's land by an expressed conveyance, however, that isn't the same thing as conveying an easement across someone else's land.?ÿ For example, if they hold rights in the easement by virtue of owning the dominant estate, they can subdivide their estate and convey the right to the subdivided property to use the easement that happens to cross another person's land.?ÿ They aren't creating a new easement but may hold the right to convey their existing rights in an easement.?ÿ?ÿ
I agree with others that, at this point, it doesn't really matter.?ÿ As long as the parties are agreeable, they could either file an owner's affidavit that recognizes the parties' right to use the easement to access certain dominant parcels or they could negotiate the creation of an expressed easement with whatever agreeable terms they determine.?ÿ Just get it put in writing and the issue is resolved.?ÿ?ÿ
JBS
PS: I'm not an attorney either, but as a surveyor, I have developed an expertise in easements and other matters of title.
Does the Brown tract have another point of access to their tract? If they do you may be able to show they can use that access or they do not need to go thru your clients tract.
This is more of a legal issue than survey, so it might need to be in a different category...
In July 1968, my clients, Mr. and Mrs. Smith, entered into a real estate contract with Mr. and Mrs. Jones, for a 10 acre tract of land with the Mashel river running through the north portion of it. A gravel driveway and bridge crosses the river through the NE corner of Smiths property. Jones owns the property to the east of Smith and in May of 1989, they grant an easement to Brown (the owner to the north) for the entire driveway, including the portion that runs through the NE corner of Smith's property. The easement is a center-line description, 30' wide; the bearings are to the second and the distances are to the hundredth, but it doesn't fit very well, almost 30 feet at the worst and my client tells me it hasn't changed in 50 years.
So my question is; is this a legal easement? Through my clients property, anyway...
And; can I help my client resolve this issue without getting attorneys involved? They are living on a fixed income and I'd hate to see them throw thousands of dollars at an attorney, for something a shady real estate developer did 40 or 50 years ago.
As always Thanks in Advance for all of your sage advice.
YHS
Dougie
"In July 1968...entered into a real estate contract"
A real estate contract doesn't transfer property. Were yout clients actually granted the land before the easment was granted?
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A real estate contract doesn't transfer property.?ÿ
Is that true everywhere or is it state specific?
?ÿIf I understand it correctly, which I didn't at first, Smith sold a tract to Jones?ÿ but Jones gave the questionable easement covering both the Jones land and a portion that was retained by Smith.?ÿ Therefore Jones never had any ownership over the portion at issue, making that part of the easement invalid.
Regardless of whether Brown could argue easement by necessity, it appears from what was presented he has an easement by prescription over the part retained by Smith.?ÿ Part of the clarification may be to record an easement covering that part to avoid future fights.
If you have a potential Prescriptive Easement and no agreement can be negotiated between the affected parties either negotiated or mediated, you're only recourse is Court. Minimum $40000 for litigation. If you're aware of a cheaper method, I'd sure like to hear about it.?ÿ
The plot thickens...
You're right @aliquot the original owner still had an interest in the property; is it "OK" for them to grant an easement over property they have an interest in?
Thank you for that; that opens up another can of worms...
The plot thickens...
You're right @aliquot the original owner still had an interest in the property; is it "OK" for them to grant an easement over property they have an interest in?
Thank you for that; that opens up another can of worms...
I don't usually say this, but it sounds like an attorney is required. I don't know if it is "OK" to do this, it probably depends on the exact contract language and/or any relevent state statutes . I would guess that the grantee of the easment has a pretty strong claim one way or the other.
In my experience a?ÿ real estate contract never passes title, but if title is not passed in accordance with the contract compensation for breach if contract is due.?ÿ
Given the facts presented, I would survey Smith's land and locate the entire length of the encroaching road then delineate an appropriate easement to contain all portions of the driveway.?ÿ Depending on the dispositions of Smith and Brown, and after I reminded Smith that they have been living in harmony with the driveway for fifty years, I would encourage Smith to deed Brown a new easement at the same time that Brown quit claims the old inaccurate easement.?ÿ?ÿ
I would not involve attorneys unless I discovered evidence that Jones was aware that the driveway was partially on Smith, and only after my clients were made aware of the costs of litigation and uncertainty of outcome.
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You're right @aliquot the original owner still had an interest in the property; is it "OK" for them to grant an easement over property they have an interest in?
That would mean they are not giving the buyer all the rights the contract called for by its wording.?ÿ
On the other hand, it sounds like they didn't intend to sell all the land the wording called for.
I've been confused as to who did what when.?ÿ?ÿ This seems to confirm that
a) Jones sold to Smith
b) The contract had not been completed?ÿ in 1989 (23 years after beginning) at the time Jones granted the easement to Brown.
c) Under applicable law, the ownership does not transfer until the contract is completed (as opposed to immediate transfer with an attached lien)
Is that right?
I would not involve attorneys unless I discovered evidence that Jones was aware that the driveway was partially on Smith, and only after my clients were made aware of the costs of litigation and uncertainty of outcome.
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In Ohio and some other states preparation of the descriptions is surveying while preparation of the actual deed must be done by an attorney.?ÿ A surveyor preparing the deed itself would be in violation of the law.
I would not involve attorneys unless I discovered evidence that Jones was aware that the driveway was partially on Smith, and only after my clients were made aware of the costs of litigation and uncertainty of outcome.
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In Ohio and some other states preparation of the descriptions is surveying while preparation of the actual deed must be done by an attorney.?ÿ A surveyor preparing the deed itself would be in violation of the law.
Yes, of course an attorney is needed to finalize the new deeds.?ÿ While I know there are some good residential title attorneys out there, there is little incentive ($$$) for them to find solutions.?ÿ It's best when you can tell,?ÿ not ask, an attorney what to do.?ÿ?ÿ
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my standard answer to the initial question is, no, you do not necessarily need an attorney. In my opinion, ALL real estate problems may be resolved, relatively easily, without an attorney.?ÿ
All of the issues I've seen which are caused by surveyors, can be resolved between two willing landowners, without legal action, far easier than with attorneys.?ÿ
If one landowner or surveyor gets sued, then they should hire an attorney for defense in COURT. If two landowners have a problem with an easement, then there are usually several ways to get it resolved, legally, far less in cost and effort than by hiring attorneys.?ÿ
In Colorado, "disputes" can be handled through several statutory means that do not involve attorneys.?ÿ
In general, the definition of a "dispute" is whereby a property line is "uncertain". None of the options available to Colorado landowners by statute for the resolving of "disputed boundaries" require attorneys.?ÿ
I've seen the same attorney argue both sides of a basic legal principle for property lines for different clients, based on the outcome that the client was paying their attorney to pursue.?ÿ
Only hire attorneys if you get sued. Do NOT hire an attorney unless you need to be defended in court.?ÿ
I have seen attorneys completely misunderstand a survey problem, why it is a problem, how it relates to lines on the ground, and especially how to resolve the problem. Attorneys struggle mightily with numbers on a piece of paper. They do NOT know what all the funny little numbers on a piece of paper mean. I have seen 3 attorneys struggle with the same problem with a right of way. They assume that two SURVEYORS are fighting, when nothing could be further from the truth. One surveyor is weighing a different set of documents and facts on the ground than the other surveyor. A dispute ONLY occurs between LANDOWNERS. disputes do NOT occur between surveyors. Lawyers can't even understand this premise, so they can't possible resolve a problem between two landowners. they can make things a lot worse, and charge a lot of money for it, but they have no idea on God's great Earth how to resolve a problem dealing with surveyors/land disputes.?ÿ
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