I am doing a plat in which the client is requesting vacation of a road and utility easement that services 7 pieces of property. The properties are all 2 -3 acres located in hilly country. All the properties have a dedicated street that serves as the main access. The street is on the high ground or upper part of lots and the bottoms of the lots extend down the hill into a beautiful valley that has many building sites. The road and utility easement is in the valley and was put in place because the properties cannot be accessed from the road due to topography. All of the properties can legally be subdivided in half or thirds and would provide nice lots in the valley. Lots are scarce here and like property has an approximate value of $40,000 to $70,000 so some owners have plans to subdivide and sell portions of lots with road and utility easement serving as access. The borough (county) has told my client that if they can get a majority (4) of owners along the easement to sign a letter stating they don’t care if easement is vacated then they will approve it. My problem is I can’t figure out how the borough thinks that this is a majority issue. How can they take the easement from the remaining 3 owners against their will and take that value out of their property legally?
Can anyone that has had an experience like this give me some perspective? Am I wrong or for wanting to protect the property rights of lot owners that want to keep the easement?
Thanks for any feedback
Just from what you have told us, I am thinking on the same lines as you. The easement is there to service ALL of the lots and should not be allowed to vacate servitude unless ALL of the land owners are in agreement.
Have any utilities been installed within the bounds of the easement? If so, it is a mute point unless the utility authority relocates the service.
My $0.02
no utilities, no driveways in easement at this time.
Sort Google search may give you a start a
11 AAC 51.065. Vacation of easements
Their is statutory code in states and further stuff in local P & Z for stuff like this. Then there is also case law.
Not sure how things work in Alaska, but it seems to me that by virtue of the granting an easement to land owners the only possible form of vacation is by each and all land owner to relinquish their rights. Certainly not by a simple majority of a county board, or other adjoiners. I've been directly involved with numerous vacations, and that is how it works.
Something is fishy here. Unfortunately, counsel may be needed here. Unless of course they are one of the consenting adjoiners.... yikes
The easement starts at the road mentioned and goes along a common lot line and then down the valley hitting the other 5 lots until it terminates at last one. The owners at the beginning of the easement are the ones that don’t like the idea of a driveway going down their lot line servicing the other 5 lots so they want it gone which would effectively render the remaining portion useless.
I have told the borough they have no right doing this and they quote a code that says “a road or easement can be vacated if the property owners on both sides agree to it”. Well the first two lots straddle the easement and they agree that they don't want it because they don’t want a driveway on their lot line so it looks like it going to happen .
The Municipality can only vacate the rights they have. They may be able to vacate the rights of the public but only the individual property owners can relinquish the private rights. And that would require 100% of those who might have any rights.
The above quoted code only applies to public easements that the state has jurisdiction over.
In Alaska a platting authority does have control over vacations of other public easements, but it sounds to me like the easements in question are private and thus can not be vacated by borough action. I don't know where you are, but some of the smaller platting authorities really have no clue, but I have found them to be very receptive to being "educated". Have you explained the ramifications of this vacation to them?
> The Municipality can only vacate the rights they have. They may be able to vacate the rights of the public but only the individual property owners can relinquish the private rights. And that would require 100% of those who might have any rights.
That's quite true.
So far, it hasn't been clarified whether the easement is public or private. But vacating it is likely to create a legal dispute either way. Any or all of the owners of the cut-off lots could go to court to object, since the vacation would substantially reduce their property values.
Bear Bait, it looks as though you are in an awkward spot. Your client wants to do something that you have good reason to believe is not legal, and the borough is going along with it. If the vacation takes place, the borough and/or your client are likely to be sued, and there is a chance you could be dragged into the case as well.
Of course you could urge both the borough and your client, in writing, to get legal advice. If that doesn't work, you might need legal advice yourself, to help you understand the situation--and also to decide whether to stay with this job or walk away from it. From what you have described, it sounds as though there might also be ethical reasons for walking away.
> > The Municipality can only vacate the rights they have. They may be able to vacate the rights of the public but only the individual property owners can relinquish the private rights. And that would require 100% of those who might have any rights.
>
> That's quite true.
>
> So far, it hasn't been clarified whether the easement is public or private. But vacating it is likely to create a legal dispute either way. Any or all of the owners of the cut-off lots could go to court to object, since the vacation would substantially reduce their property values.
>
> Bear Bait, it looks as though you are in an awkward spot. Your client wants to do something that you have good reason to believe is not legal, and the borough is going along with it. If the vacation takes place, the borough and/or your client are likely to be sued, and there is a chance you could be dragged into the case as well.
>
> Of course you could urge both the borough and your client, in writing, to get legal advice. If that doesn't work, you might need legal advice yourself, to help you understand the situation--and also to decide whether to stay with this job or walk away from it. From what you have described, it sounds as though there might also be ethical reasons for walking away.
There is no clarification needed as to whether the easement is public or private. The reason is simple and has been discussed above. There are public AND private rights in and to the easement. The political body that has authority to vacate public right-of-way (strictly interpreted here in it's original definition of a right of use)can only vacate the interest that it has, or holds for the public. I'm reiterating what's been explained above, but the public interest has nothing to do with the private interest held in the easement. What agreements or interests that private property owners have with each other cannot be obfuscated, modified or affected by the political body's actions in this case.
>cannot be obfuscated
No argument with the rest of your post, but the obfuscation has already occurred.
I think the borough members need to be educated by some legal counsel. The two owners at the beginning of the easement are essentially the servient estates. It seems to me that the only ones that could end an agreement are the dominant estates, or the ones that gain the benefit of the easement. (I know I am basically saying that I agree with everyone else.) The borough probably won't take legal advice from a land surveyor and some bigger guns might need to come out.
I assumed that since they were going to vacate via the county that the easement was public. If the easement is private, then yeah, what does the county have to do with it? The post doesn't say who the grantees of the easement are.
> >cannot be obfuscated
>
> No argument with the rest of your post, but the obfuscation has already occurred.
I know someone would take exception to that remark :snarky:
Yes, you are correct. I should've selected a better term to make my point.
I watched our local city council mull this over. A similar situation. A property owner, in pursuit of a building permit, was asking the city to vacate an access easement to a property next to him.
The mayor and council all thought it was a grand idea mainly because there was other access and "it was hardly ever used". Finally the city attorney spoke up and explained to the mayor and council they really didn't have the authority to do such.
Of course they all argued. Vacation of platted alley easements in the older parts of town is a pretty common ticket for the council. They just couldn't understand the difference between a platted alley easement and a private access easement ...and after all..they ARE the city government..:pinch:
Day, thanks for the statute #, I found some interesting info but basically power is relinquished to local platting authority except if it’s a state road and then vacated through state DNR procedure. This is a public easement and will have to be vacated through the borough process but the community development department here has been pretty much making things up as they go the past several years and if you try and suggest they do it “to code” they don’t respond or if they do they say to hire an attorney if you have a problem. Advice from surveyors is not taken here, we are simply the person filling out the paperwork.