In the past, probably like most others, I've used the terms "Does/Does not affect" when commenting on Sch. B items, but a recent article I read suggested that this comes close to being a legal opinion, and recommended using something along the lines of "lies within/outside surveyed property." Just curious as to others thoughts on this, and what language they typically use. I'm liking the idea of using the "within/outside" term just for the fact it to me is a more accurate statement from a survey perspective.
Texian, post: 428225, member: 10243 wrote: In the past, probably like most others, I've used the terms "Does/Does not affect" when commenting on Sch. B items, but a recent article I read suggested that this comes close to being a legal opinion, and recommended using something along the lines of "lies within/outside surveyed property." Just curious as to others thoughts on this, and what language they typically use. I'm liking the idea of using the "within/outside" term just for the fact it to me is a more accurate statement from a survey perspective.
I've used those terms also. They seem to "work" and nobody bitches.
I would like to read the article that suggested the determining terms of whether an easement "does or does not affect" any given property "comes close" to being a legal opinion. I'm assuming the article was attempting to steer away from the use of those terms.
But what else are surveys and boundary determinations made of if not the opinion of the surveyor based upon the presented facts?
I have been provided a title policy with a Schedule B(II) Special Exceptions full of easements. I only know that I am being asked, based upon the words of the documents, if those easements share a proximity with the subject property. I am not being asked to certify if those easements are still in effect, vacated, transferred or conveyed to any other party. Although apparent within the wording of a document one could present an opinion as to whether the subject property was servient to a dominant estate; we are not even asked that.
The actual limited, incomplete and open-ended status of provided easements and such insure that we are only able to make an educated determination as to whether a described easement shares a proximity with a described estate. I would, lacking a better term, consider that an opinion.
In such light I believe the term "does or does not affect any particular property" is adequate.
paden cash, post: 428234, member: 20 wrote: I've used those terms also. They seem to "work" and nobody bitches.
I would like to read the article that suggested the determining terms of whether an easement "does or does not affect" any given property "comes close" to being a legal opinion. I'm assuming the article was attempting to steer away from the use of those terms.
But what else are surveys and boundary determinations made of if not the opinion of the surveyor based upon the presented facts?
I have been provided a title policy with a Schedule B(II) Special Exceptions full of easements. I only know that I am being asked, based upon the words of the documents, if those easements share a proximity with the subject property. I am not being asked to certify if those easements are still in effect, vacated, transferred or conveyed to any other party. Although apparent within the wording of a document one could present an opinion as to whether the subject property was servient to a dominant estate; we are not even asked that.
The actual limited, incomplete and open-ended status of provided easements and such insure that we are only able to make an educated determination as to whether a described easement shares a proximity with a described estate. I would, lacking a better term, consider that an opinion.
In such light I believe the term "does or does not affect any particular property" is adequate.
Well, to say that an easement affects a particular tract is to give two opinions, namely:
(a) that the easement is valid and
(b) that it is located in a particular position.
If the easement is invalid, then it is not in effect.
This would be why I prefer to discuss the location of the strip of land described in the deed from, say, Farmer Brown to Intergalactic Cable Corporation as being subject to an easement for stuff and other stuff. The surveyor is set to identifying particular lands or parts of land, but isn't typically licensed to guarantee title to the estates that are claimed to exist in the land apart from questions of boundary.
I may refer to an item as "not plottable". If I believe that a plottable item does not affect the subject property I will contact the title company and ask them to remove the item from the schedule. If I'm right they will usually comply.
There are 3 types of easements
1. Easement in gross
2. Easement appurtenant
3. Prescriptive Easement
As a surveyor I can only locate easements by use, description or physical location and show them as they actually appear.
Locating those are easy because they can be seen, located and shown on the drawing.
All the other possible easements or encumbrances to the property fall in the "apparent easement location is not visible on this property".
I made a survey of a bank building at a major intersection where there was no final plat showing where the sewer line ran across the property.
There existed a construction plan and matching described easements and there was nothing on the parcel I was surveying that gave any physical location of the buried sewer line.
Off property were manholes that did not fall in the described easement.
I pulled the manholes and they were a vertical drop.
By connecting them with a straight line, the result showed that the sewer line crossed the property under the building.
That is what I showed and it was met with all kinds of objections and the sellers demanding I not show it on the drawing.
I did not change anything and do not know what they did, it took a long time for that bank to open.
Many properties on this area are covered with some type of blanket easement from local electric and gas utility easements and others have been associated with described easement that affected a parent tract decades or century ago that may have expired as a part of the agreement or dissolved with the company's closing and/or no longer in use, leaving nothing to find.
Bottom line, we show what we know and can see and prove and the rest is unknown until someone can prove otherwise.
Just tell the story.
Easement location shown hereon anfmd labeled as 'x'. The easement is in use as shown.
Part of the problem with these articles is a failure to recognize the nuances of State laws. In some the practice of law us defined as advising a person of their rights. In others it is as simple as givung an opinion of what a law means. I deal in facts and only change my practice when the facts tell me to.