Legal standing of easement only shown on an unrecorded plat

I'm of the opinion that it would have legal standing whether recorded or not, most especially if any of them are actually used. Either way if I were platting it I would show it as an undefined easement on the unrecorded plat.

That's pretty much what I was thinking, too. It doesn't look to be used for anything. But showing it and noting it as "10' easement per unrecorded plat" is where I was going. My cleint is trying to buy the lot from the estate and I'm pretty sure this will be a hang up with the title people ...

The problem with an unrecorded Plat is the question of notice.

The original lot buyer may have been provided with a copy then there would actual notice. Outside of that, the only notice is the facilities present (such as power poles and lines).

> ...the legal description is "Lot 9, unrecorded plat of ...., being more particularly described as follows ... (metes and bounds) .... "
>
> No meantion of the easement in the legal description.
>
> It got me thinking, does an easement that's "created" by an unrecorded plat, and doesn't appear ANYWHERE in the public records, nor was it ever dedicated to (,and accepted by the,) governing bodies as a public utility or drainage easement, have any legal standing?

I would say yes since the easement , in a way, is mentioned in public records if only because the conveyance is linked to the plat where it, the easement, was created. I would hold to that whether or not the plat itself was recorded. As to whether or not an encroachment truly exists, and how critical it might be, those are two different questions. But, as a rule, I think it's always best to acknowledge any type of easements I might become aware of. I would say especially if a "picture"/"map" of it exists and a deed refers to that map in some manner.

ILegal standing of easement only shown on an unrecorded plat

I agree with Ed: since the deed refers to the plat, the lot carries with it all that the plat implies.

"It got me thinking, does an easement that's "created" by an unrecorded plat, and doesn't appear ANYWHERE in the public records, nor was it ever dedicated to (,and accepted by the,) governing bodies as a public utility or drainage easement, have any legal standing?"

Thats an interesting legal question. I'd like to vote no.

Very interesting. My thinking is that if the plat is properly signed it would be legal, whether or not it is recorded. If it is notorized, that would add even more weight to it. I'm certainly no expert on such matters, though.

Chris B.

The easement may provide a nonpossessory right to enter and use.

In my mind, the plat being unrecorded has not given the public any "constructive notice" that it may exist. If the easement is unoccupied or access restricted to any other party than the land owner, a good argument could be made that it doesn't exist.

That being said, I would hesitate to consider anything occupying or overlapping that line an "encroachment". Most specific easements that restrict surface uses or occupations either restrict use as to not impede maintenance of a buried utility (sewer or water) or public safety (transmission lines, either elctrical or hydrocarbon).

Just because there is an easement there doesn't mean the surface owner cannot legally occupy a portion of it unless the instrument itself, or local codes and zoning prohibit such.

It sounds like they are drainage easements. It does not sound like they are access easements of any kind. But, that is just idle chit-chat. They are unspecified and I would show as such on my survey.

Am I to understand that the legal descr. actually says: "...as shown on unrecorded plat..."? That's odd.

I would say that if the deeds refer to the plat, and then whether they say unrecorded or not, and whether the plat is truly unrecorded or not, then yes, they are real and alive.

Stephen

No - Simply throwing some lines on a map and saying that its an easement does not necessarily create an easement. For it to be an easement it must be dedicated, granted or reserved as such and in this case, based on the info you have provided, that was not done on the map. It may be an old existing easement though, in which case you would want to check with title to see what they can find in public record. Another option is to check with the city/county to see what the development standards were at the time. I have seen some old subdivisions where it was in the development standard at the time to grant PUE's on all new property lines.

Regardless it still does color title and I would plot it and just call it out for what it is, an area shown on an unrecorded map as an easement for undisclosed purposes.

between the original parties it was a legal easement. It is not protected by the recording statutes though. I would not want to insert it into the record at this point unless there were evidence of an easement type use over the years. On the contrary, you have presented only evidence that current owners knew nothing about it. Usually there is a statutory time limit for filing records of interests in real property. If you show an easement, file the map, and the time was up, you could be acussed of slandering the title. I might show it but also note that in my opinion it is not a legal easement.

Of course it has "legal standing". But the question is legal standing for what? You don't say what state you are located in. I would say usually there has to be a written acceptance by a governing body for it to become a public easement. However, there are always exceptions. The plat doesn't say who the easement is to, what the easement is for, so the burden is probably on the person who claims the easement. But it might have been common in the time frame of the subdivision for building setbacks (for fire) to be shown this way. But who knows, it could be for drainage, it could be for the birds.

This is what lawyers and title companies are for. Just show what you found and let them settle it. It may be a common situation for a local title company. I wouldn't get hung up on the fact that the plat is unrecorded, especially since the description which I assume is recorded calls for the plat. There is too many variables for a surveyor to make a call on this situation.

Evelyn

If an unrecorded subdivision plat is good enough for a conveyance of real property then the easements shown should hold the same weight. Undefined as to who holds the right depends on time, structures (i.e ditch...etc) and who it affects. That's a problem for the title insurer. I've never heard of a piece of property being conveyed in this situation...at least not where I'm from. So, in short, (imo) the legal standing of the easement is about as legal as the conveyance of real property.

As noted in my first post, the reference to the unrecorded plat is more of a preamble, and it has a "being more particularly described as follows" metes and bounds description:

"the legal description is "Lot 9, unrecorded plat of ...., being more particularly described as follows ... (metes and bounds) .... "

I've never seen a parcel conveyed solely by a reference to an unrecorded plat.

I'm pretty much 50/50 on this. I think a prudent surveyor would show the easement and note where it came from on the survey. But I also think if challenged, and there was no use made of the easement (utility, ingress/egress, etc.) which I think is the case here, the easement would be thrown out.

I see two big problems, which were already mentioned. Without the plat being in the public records, the public is not "put on notice" that the easement exists. In any other county I work in, I'd probably never have found a copy of the plat, and never known this easement existed. It just happens that this county has collected unrecorded plats for several decades ... But even here, I've found a few references to unrecorded subdivision plats that they didn't have.

Secondly, and I've been told this before by county officials, that unless the plat is signed and accepted by the county, then the easements and right of ways were never accepted by the county, and they are not public.

I asked this as more of a theoretical question ... how can an easement only shown on a "non-public" document be binding on the land owners who may have purchased the lots without seeing the document, and that a title search may not have turned up? I seriously doubt most of the title people in this area are going to try to hunt down an unrecorded plat. But I'm going to email a copy to this one on Monday.

:good:

A good question might be, if the county is keeping "unrecorded" plats and publishing them, is that not sufficient notice? Are they really unrecorded or are they just unreviewed by the county? I would show the esement per the unrecorded plat and note where it can be found.

Calling for a Lot within an unrecorded subdivision plat only provides the boundary description for the tract and no more unless there is a grantor and grantee type of action that has been taken by the actual use of the unrecorded easements. This might be a good case of a Quiet Title action to be taken by the owner.
jud

my opinion is that the plan will show where an easement may lie, but without a grant of easement, it doesn't exist, yet...

just as a plan may create lots for conveyance, they do not get conveyed without a deed, ditto for easements...

Dtp

It is a conundrum. It seems that if the real property exists with a lot number in reference to that plat, then the encumbrances shown on the lot on the plat would exist as well. I wouldn't rule it out anyway.

Good thread.