Tommy Young, post: 386649, member: 703 wrote: Fill me in please, what is Gary Kent's reasoning for not listing encroachments?
The legal definition of encroachment is an illegal protrusion. As surveyors, we do not know what has been allowed verbally, in writing, or otherwise. As such, they are simply protrusions or intrusions. Whether the law has been broken is 99% of the time, unknown to the surveyor. That was something we've done for decades, but I heard Gary Kent give a very near synopsis of it about 10 years ago.
[USER=11407]@Cameron Watson PLS[/USER], a street does not have to have dedication AND acceptance to be a public road. It simply requires dedication to be a public way. It required acceptance for a particular governmental body to have taken it over for maintenance. Those are important distinctions that need to be made. If one dedicates something to the public, it's gone, regardless if the body representing the public accepts it.
Kris Morgan, post: 386740, member: 29 wrote: [USER=11407]@Cameron Watson PLS[/USER], a street does not have to have dedication AND acceptance to be a public road. It simply requires dedication to be a public way. It required acceptance for a particular governmental body to have taken it over for maintenance. Those are important distinctions that need to be made. If one dedicates something to the public, it's gone, regardless if the body representing the public accepts it.
The transfer of real property requires two entities; one giving and one receiving. The necessary act of acceptance by the receiver serves to complete the transaction. I don't know that responsibility of maintenance plays into it. Whether maintained or not, the public, by way of the governmental body representing it, has to say in some form or another "okay, I'll take ownership of this piece of property".
I never thought about this before. It does sound as though "declaring" a roadway as a "public" road is kind of akin to determining Title. That is generally not what we do. We determine "where" the lines are, not the ownership. I bet title companies love us making such determinations. It helps them guarantee title.
Kris Morgan, post: 386738, member: 29 wrote: The legal definition of encroachment is an illegal protrusion. As surveyors, we do not know what has been allowed verbally, in writing, or otherwise. As such, they are simply protrusions or intrusions. Whether the law has been broken is 99% of the time, unknown to the surveyor. That was something we've done for decades, but I heard Gary Kent give a very near synopsis of it about 10 years ago.
I won't disagree with what you said...but....not sure I am as afraid of using the word as much as I used to. in fact our state statutes require a statement on ILCs that says, in part: "that there are no encroachments upon the described premises by improvements on any adjoining premises, except as indicated, and that there is no apparent evidence or sign of any easement crossing or burdening any part of said parcel, except as noted."
I am not so sure that protrusion or intrusion does not essentially say the same thing. I mean if you "note intrusion" what is the improvement intruding against? It is saying that you have determined the property line and there is something that is crossing it. Property line by definition is the limit of the ownership. So by calling something a property line you are determining that it is the ownership and that an "intrusion" or protrusion" is invading into/out of the line of common ownership.
Regardless, I guess if some prominent people are warning against using the term, it might be better to use protrusion instead Just kind of playing devil's advocate here.
Tom Adams, post: 386799, member: 7285 wrote: I won't disagree with what you said...but....not sure I am as afraid of using the word as much as I used to. in fact our state statutes require a statement on ILCs that says, in part: "that there are no encroachments upon the described premises by improvements on any adjoining premises, except as indicated, and that there is no apparent evidence or sign of any easement crossing or burdening any part of said parcel, except as noted."
I am not so sure that protrusion or intrusion does not essentially say the same thing. I mean if you "note intrusion" what is the improvement intruding against? It is saying that you have determined the property line and there is something that is crossing it. Property line by definition is the limit of the ownership. So by calling something a property line you are determining that it is the ownership and that an "intrusion" or protrusion" is invading into/out of the line of common ownership.
Regardless, I guess if some prominent people are warning against using the term, it might be better to use protrusion instead Just kind of playing devil's advocate here.
You might be interested in knowing what your State Bar thinks of this "requirement". In the areas I practice determining whether or not there is an encroachment is a legal matter, and you are practicing law if you do so. Same thing with preparing deeds - I will write descriptions all day long, but I would never prepare a deed. That is a legal matter.
I believe that Gary Kent sucessfully fought to remove the old ALTA requirement that forced us to make the determination...
Tom Adams, post: 386792, member: 7285 wrote: I never thought about this before. It does sound as though "declaring" a roadway as a "public" road is kind of akin to determining Title. That is generally not what we do. We determine "where" the lines are, not the ownership. I bet title companies love us making such determinations. It helps them guarantee title.
"It does sound as though "declaring" a roadway as a "public" road is kind of akin to determining Title."
That is exactly what it is - the declaration on the plat transfers ownership from the owner to the "public". Without an acceptance on the plat the road would remain the property of the owner, and would be a taxable parcel.
Mail boxes. They are to only be placed along publicly-accessed routes. If there are mail boxes present, it's a public route.
(Donning fire retardant underbritches)
Kris Morgan, post: 386740, member: 29 wrote: [USER=11407]@Cameron Watson PLS[/USER], a street does not have to have dedication AND acceptance to be a public road. It simply requires dedication to be a public way. It required acceptance for a particular governmental body to have taken it over for maintenance. Those are important distinctions that need to be made. If one dedicates something to the public, it's gone, regardless if the body representing the public accepts it.
Can you supply a source for that bit of information? I'm not questioning you but it is something I would like to pass on as the truth. Also is that state specific or common law? Thanks Jp
Holy Cow, post: 386809, member: 50 wrote: Mail boxes. They are to only be placed along publicly-accessed routes. If there are mail boxes present, it's a public route.
(Donning fire retardant underbritches)
I've seen many mail boxes at the end of sidewalks and by the steps of houses far from the road.
When the road has a name that shows up on a county, state or other map, I will state the name of the or the number assigned the road.
Apart from that, it will be called graveled, paved, oiled, concrete, etc.
Around here all roads are marked with a sign (state, US, county, private and/or no trespassing with a gate).
I've done extensive study on Right of Way creation and abandonment in Idaho. The Statutes and case law aren't terribly complex, but almost nothing said in this thread holds true in every case. By the same token my research is as ll but useless outside of idaho...
Cameron Watson PLS, post: 386790, member: 11407 wrote: The transfer of real property requires two entities; one giving and one receiving. The necessary act of acceptance by the receiver serves to complete the transaction. I don't know that responsibility of maintenance plays into it. Whether maintained or not, the public, by way of the governmental body representing it, has to say in some form or another "okay, I'll take ownership of this piece of property".
Your mileage may vary where you are, but in Texas, it's dedicated, and then it's graded. The act of maintenance is the acceptance of it. Even to this day, all roads, in my county, are dedicated by plat. The government WILL NOT accept them, and it's required on the plat, until the roads are brought up to the level of their standards. Until that time, that is a public road, and not necessarily and county road or city street. Acceptance comes in many forms.
Jp7191, post: 386817, member: 1617 wrote: Can you supply a source for that bit of information? I'm not questioning you but it is something I would like to pass on as the truth. Also is that state specific or common law? Thanks Jp
Probably state specific. The standards for our county require dedication of a road, but acceptance is not done until the road is built up to standards. That is their verbiage that is required on the plat, so presumably, it was vetted by an attorney, and reviewed by many more. As bad as subdivisions got in this county, even the Attorney General looked at the standards. As such, it's dedicated, but not accepted until built up, which, by proxy, still makes it a public way, just not a county road/city street.
Kris Morgan, post: 386830, member: 29 wrote: Your mileage may vary where you are, but in Texas, it's dedicated, and then it's graded. The act of maintenance is the acceptance of it. Even to this day, all roads, in my county, are dedicated by plat. The government WILL NOT accept them, and it's required on the plat, until the roads are brought up to the level of their standards. Until that time, that is a public road, and not necessarily and county road or city street. Acceptance comes in many forms.
Kris et al,
You are mostly correct. Just because someone gets a subdivision plat approved by the local governing authority, or files it with the County Clerk, and that plat makes an offer of dedication, does not mean that offer has been accepted by the local governmental authority. That's the largest misconception about offers of dedication. I know you didn't say that specifically. Regarding your comment about maintenance, it is only one form of evidence of acceptance, just as improvements made to the land (i.e.- road, utilities, drainage ditch/flume) are also evidence. Maintenance may be enough evidence, and usually is with regards to roads, but the contrary may be shown in common law.
You said "If one dedicates something to the public, it's gone, regardless if the body representing the public accepts it." That's not true. For example, someone can dedicate an easement to the public for utilities, and it can lie dormant for years without improvement, maintenance, or use (usually the three areas of evidence of acceptance). The local governing authority can state, and will if they desire, that they never accepted the offer of dedication, and that position will legally be supported.
Similar to our profession, the legal decision whether an offer of dedication has been accepted by the governing authority, is usually on a case by case basis depending upon the facts.
I have used the term "apparent encroachment".
As a mechanism to State the existence of something without knowing its specific legal status.
Kris Morgan, post: 386832, member: 29 wrote: Probably state specific. The standards for our county require dedication of a road, but acceptance is not done until the road is built up to standards. That is their verbiage that is required on the plat, so presumably, it was vetted by an attorney, and reviewed by many more. As bad as subdivisions got in this county, even the Attorney General looked at the standards. As such, it's dedicated, but not accepted until built up, which, by proxy, still makes it a public way, just not a county road/city street.
Okay, so I'm starting to understand your process and I think our mileage does vary. If the method is via plat where you are then it goes like this:
1. private party creates a plat, shows ROW and includes dedicatory language
2. plat goes through some governmental review process and gets approved for recording (all parties signing final version)
3. plat gets recorded into the public record
[this is where I'm fuzzy]
4. at the time of recording the conveyance of the ROW happens, jurisdiction having authority takes fee simple ownership of the ROW and it is no longer taxed as personal property
5. road is built to whatever jurisdictional minimum standard (who is responsible for building the road - private party, jurisdiction or a combination?)
6. road is inspected to meet minimum standard and when it does it is accepted by the jurisdiction and will be maintained by the same
7. at time of acceptance of minimum standard construction road becomes a legitimate public road
My biggest question is when in the process does the property actually change hands and is no longer taxed? Here that happens when the plat records as there is dedication language in the owner's certificate and the signature of the Mayor, City Council, County Commissioner, whatever the case may be acts as the Jurisdictional acceptance of the property. The construction of the physical improvements of the street or road could go undone forever but it would be no less of a public ROW. This happens quite frequently and often times the private developer will be responsible for the construction of the street section so the public can efficiently access the site to get to the homes or shopping being built there. Sometimes they are reimbursed for those construction costs, sometimes they are not.
[USER=11407]@Cameron Watson PLS[/USER] "My biggest question is when in the process does the property actually change hands and is no longer taxed?"
It is not taxed the instant it is recorded and the appraisal district sets up the subdivision.
[USER=188]@Glenn Breysacher[/USER] "You said "If one dedicates something to the public, it's gone, regardless if the body representing the public accepts it." That's not true. For example, someone can dedicate an easement to the public for utilities, and it can lie dormant for years without improvement, maintenance, or use (usually the three areas of evidence of acceptance)."
Well, I suppose, you may be right, but, in your example, if the easement is dedicated by the plat, then the easement exists and will show up as an encumbrance upon the tract, by a title company, until such time as the easement is extinguished by plat vacation or some other action. If it was recorded in the court house as a metes and bounds, regardless of whether the utility gets installed, it is still the encumbrance on the tract. So it's dedication and filing make it exist, whether it was accepted remains to be seen. There are provisions in the law, regarding inactivity of easements, specifically pipelines, that will void an easement, but not roads, even though it is an easement of sorts. It's dedication of a road, to the public, removes it from a use of a company or individual and then places it in the realm of the people, which, as the maxim goes, once a road, always a road. Obviously there are some exceptions to this, but by and large, a corridor created for public travel, and dedicated to the public as such, will remain that way.
We have many old subdivisions where the roads were never built, but the plat dedicated the area for a road. For the city, we have an abandonment vehicle and for the county, we vacate the plat in part, specifically the roads and have an abandonment for those roads as well to clear title and remove the burden.
Cameron Watson PLS, post: 386846, member: 11407 wrote: Okay, so I'm starting to understand your process and I think our mileage does vary. If the method is via plat where you are then it goes like this:
1. private party creates a plat, shows ROW and includes dedicatory language
2. plat goes through some governmental review process and gets approved for recording (all parties signing final version)
3. plat gets recorded into the public record
[this is where I'm fuzzy]
4. at the time of recording the conveyance of the ROW happens, jurisdiction having authority takes fee simple ownership of the ROW and it is no longer taxed as personal property
5. road is built to whatever jurisdictional minimum standard (who is responsible for building the road - private party, jurisdiction or a combination?)
6. road is inspected to meet minimum standard and when it does it is accepted by the jurisdiction and will be maintained by the same
7. at time of acceptance of minimum standard construction road becomes a legitimate public roadMy biggest question is when in the process does the property actually change hands and is no longer taxed? Here that happens when the plat records as there is dedication language in the owner's certificate and the signature of the Mayor, City Council, County Commissioner, whatever the case may be acts as the Jurisdictional acceptance of the property. The construction of the physical improvements of the street or road could go undone forever but it would be no less of a public ROW. This happens quite frequently and often times the private developer will be responsible for the construction of the street section so the public can efficiently access the site to get to the homes or shopping being built there. Sometimes they are reimbursed for those construction costs, sometimes they are not.
"My biggest question is when in the process does the property actually change hands and is no longer taxed?"
Here that occurs when constructive notice is made, ie. recordation of the plat.
Jim in AZ, post: 386864, member: 249 wrote: "My biggest question is when in the process does the property actually change hands and is no longer taxed?"
Here that occurs when constructive notice is made, ie. recordation of the plat.
Same here. There is no secondary acceptance step. Approving and recording the plat is the acceptance. There is no offer of dedication as Glenn referred to it, it's either dedicated or not. It's interesting the different ways the same thing is accomplished in different places.
