I've got a project where the city is wanting me to show temporary construction easements on a record of survey. This seems dumb to me and I'm curious if anyone else out there has run into this before, and how it was handled. If you were able to push back against such a request, what was your argument? Or if you went along with it, what was your reasoning?
I don't think cities have a say in what goes on a Record of Survey, it's a state requirement. Unless your state law requires it or it's relevant to the survey it need not be shown. (There is always the MAY clause)
If the construction has not been completed it is your obligation to your client to show it. If the construction is completed and accepted by the authority it was granted to, the temporary easement is extinguished upon the acceptance of the improvements and becomes irrelevant.
In your situation, if the construction has been completed and accepted, tell them to pound sand.
I’d show it and the date it expires. That easement needs to be given consideration by the property owner as long as it’s valid. If the property was to sell the new owner has a right to rely on the ROS.
Would you leave off a temporary driveway easement if the driveway wasn’t built?
I don't show easements on a ROS.
We very rarely show easements on any standard survey. They CAN be shown if so requested. Nearly all rural surveys would have at least one easement for the county road serving the property. Might have two or more such road easements for a single tract.
It's just the standard practice here. Only show easements of any kind if added to the standard job request. So many easements in rural areas have been written so poorly over the decades it would be difficult to nail down precisely where they exist. For example, rural water district easements generally either read as a blanket easement on the entire property or so many feet either side of the pipeline as laid. The pipes are all plastic and have no tracer wire installed. It is extremely rare to find records showing where the lines were installed. Best guess is somewhere inside a road fence and somewhat parallel to that fence, except for where it isn't. Then it might be dang near anywhere.
The ROS is to show a permanent easement that is being created for the benefit of the city. The temporary construction easements are related to the permanent easement but... I was planning to do a separate description and an exhibit for the temporary easements. The city says they want the temporary easements shown on the ROS in case someone from the company that owns the parcel drives by and sees work going on and panics. I'm like what...? I don't know how those things are related, but even if they were I'm not a fan of showing something temporary on a ROS. As far as the state code goes we're required to monument easements (and thus file a ROS) that are permanent in nature that don't abut a previously monumented line, neither of which apply to these construction easements.
Anyway, I appreciate the feedback so far, it's great to see other points of view.
It has been my experience that on some occasions, a client does not always know what they are asking for. In the situation you are describing, I would likely explain to my client my reluctance to show a ‘temporary easement’ on a Record of Survey. I would offer to prepare an exhibit map instead for them to use in negotiations for the easement with the landowner. That being said, I have prepared several land descriptions for temporary construction easements that contained a graphic exhibit anyway, and these documents did get recorded, but not as a ROS.
Yep, I'm totally fine with preparing a separate description and exhibit if they're looking for something to record. I've been going through a PM rather than talking directly to the city rep so maybe my solution isn't getting relayed with the right amount of gravitas.
In 14 years, my office reviewed and filed over 2600 records of survey. We hardly ever saw any easements shown on them because in Oregon it's not required by law to show easements for rank and file boundary surveys (as opposed to land divisions like subdivisions and partitions). Some surveyors would show existing easements on their surveyors and some of the ROS filings were to document and/or monument new easements, rights-of-way, etc.
Our in-house policy we had for any ROS was not allowing notes like "Road to be vacated" or showing a proposed road with wording like "future road". This was based on about 100 years of institutional experience regarding harm and confusion to the public, to wit, a 1940 survey with a public road labeled "to be vacated", it never was vacated, and in the 2000s a house was built in the R/W based on the 1940 note. Or, a public road R/W on a 1985 survey had an extension shown beyond the ROS boundary with the note "future public road". Road was never dedicated but in 1995 folks relied on the 1985 note and punched a road in across private property since the survey said "future public road" and 1995 was the future to a land owner's math (1995-1985=future).
My point being is that in a recording state a Record of Survey is forever. The public can be misled decades from now by extraneous information of a temporary or hypothetical nature.
I think I'm in the minority here...I don't mind showing temporary easements on surveys, recorded or otherwise, if they are (a) obviously still in force or (b) there is any doubt whatsoever that they may or may not still be in force.
The extinguishment trigger for temporary easements can be pretty convoluted. I've seen "temporary" easements that were still in force 50+ years later due to the conveyance language.
In any case, I'm not worried about whether or not the easements I show will still be in force when the next surveyor comes along. I care more about whether they are shown in the correct location. I'm not going to make a statement about whether or not they will be gone or when - I'll show them where they are and reference the recording document.
For all I know, all of them will be gone or there will be a pile of new ones on top of the existing ones within a month of me recording. That's why landowners get current title reports, and special exceptions are investigated.
In my ideal world, a survey should reference the document creating any easement it shows and not be the document creating it unless that is explicit in the wording as would a new subdivision.
Under that guideline, it should show all easements of record against the property, temporary ones included.
While not a requirement, it's probably much easier to just go ahead and add it to appease them and move on.
All easements can be extinguished. Just because a document may say 'permanent easement' doesn't make it so. Denoting an easement, temporary or otherwise, on a survey is merely documenting the facts at the time of the survey. You can't be responsible for how people perceive it 10, 20 or 50 years from now.
Maybe this is an overbroad statement, but I can't imagine anything wrong with putting correct information on a survey as long as I was getting paid to do so. If the information is correct what is the harm?
