I'm doing some work in a small town not far from here. In the last 15 years they've stepped into the real world and have built a tax base, a water system and they even generate enough speeding ticket revenue from their half mile of highway frontage to pay for a squad car and a boy scout to drive it. They've actually done fairly well.
And like a good number of municipalities around they love to stick development with a stack of permits and requirements that will hopefully fund their "inspection" department. One of their requirements is a 10 acre minimum on residential sites that do not go through the platting process, which involves the county and state health department. OK.
I represent a client that own 220 acres of beautiful Walnut Creek bottom but lives about 20 miles away. He's made a good living growing and selling his alfalfa there. He and the missus have recently decided to retire and build the "big house" out at this farm. Not wanting to live too close to any traffic he decided his 10 acres should be on the interior of his land. I surveyed the NW/4, NW/4, SE/4 for him. His NW property corner is the center of section.
In an attempt to expedite everything he got the ball rolling on a mortgage (construction loan) and a building permit simultaneously. The local municipality says he needs "permanent" access provided to the 10 acres, and the lending institution agrees (in theory) with the requirement.
Technically, to dedicate an easement requires someone other than the record owner to become the grantee of these rights. The title company and I agree on this. Neither the town nor the county want the access dedicated to them, apparently fearing maintenance responsibility. If I create a parcel that has a 40 or 50 feet strip that extends to the section line it fails the town's frontage requirements of 150'.
I provided the client, the town and the title company with a few options. The client would prefer to not have a piece of property with a half mile long skinny panhandle, even if the town would allow a variance from their frontage requirements. The simplest is to just show a 40' strip on my survey and label it as "access". The lender doesn't like that idea and is leaning toward 'dedicated' access and the town inspection department has remained silent (they don't know what is going on).
I have suggested my client dedicate the easement to any "future assigns" of the ten acres. The title examiner doesn't think the lender will buy that.
Anybody have any suggestions?
That sounds doable - a covenant recorded as a Notice of Restriction on the remainder parcel over which the access strip runs (the subservient tenant). Once entered into a sales agreement over all or any part, it becomes a "Subject To" clause in that conveyance at that later date. That should be satisfactory to the Title Company, lender(s), and the Building Department - not to mention the Fire Department, Ambulance Company, Pizza Delivery, and Amazon drivers, et cetera.
What's wrong with owning 220 acres with a single family dwelling on it? Taxes?
Can you segregate out the 10 acres for tax purposes? (They do that all the time here)
I see no problem with owning 210 acres and the 10 acre tract that adjoins it; and giving myself an easement to access my 10 acres. (they do that all the time here, too). That way, when the title transfers to someone else, they will have legal access. Or the owner or the 210 acres will know that the 10 acres can access their property, legally; which ever conveys first.
Although I've seen problems; someone buys a piece of property and doesn't like it being encumbered by an easement. I tell them; either they shouldn't of bought the property; or bought both properties and relinquished the easement.
paden cash, post: 417125, member: 20 wrote: Technically, to dedicate an easement requires someone other than the record owner to become the grantee of these rights. The title company and I agree on this.
Is this something that is Oklahoma specific? Or is it like this in other states too?
I think that it's pretty universal that you can't grant an easement to yourself.
The way I've seen it done is to record a Declaration of Easement. This way any buyer of the 210 acres is on notice that there is an easement.
They could create a holding company and transfer the 210 acres to it reserving an easement to themselves.
Under historical Common Law a person couldn't have an easement or boundary with themselves, there was no need. A person could subdivide their property anytime. In the current reality, and bearing in mind that the Law is supposed to evolve as experience changes, those rules may be fading away because they aren't practical when it can take two years to subdivide a parcel and the agency requires easements benefiting the various parcels still owned by the same person. An experienced Real Property Attorney should be able to figure out how to do it.
In California, it's known as the Doctrine of Merger (enacted 1872). The Civil Code has a statutory admonishment:
805. A servitude thereon cannot be held by the owner of the servient tenement.
811.
A servitude is extinguished:
1. By the vesting of the right to the servitude and the right to the servient tenement in the same person;
Warren Smith, post: 417140, member: 9900 wrote: In California, it's known as the Doctrine of Merger (enacted 1872). The Civil Code has a statutory admonishment:
805. A servitude thereon cannot be held by the owner of the servient tenement.
811.
A servitude is extinguished:1. By the vesting of the right to the servitude and the right to the servient tenement in the same person;
It would be interesting to look up the Annotated Code, see what current cases say about them.
If nothing else, a recorded document while not creating the easement would at least raise a strong presumption in favor of an implied easement when the 10 acres is subdivided from the remainder.
Historically, the only way to have a boundary was to have two different owners but in this day and age of filed maps creating lots the parcels sort of take on a life of their own as separate entities even though they are owned by the same individual.
It's all to satisfy the lender (and the town's council). Everybody is trying to avoid the existence of a land-locked piece. It's kind of funny, but the chances of that happening are fairly small since the owner is going to cash-out his construction loan upon completion of the house. His insurance company has also gotten into the mix in some way that I'm ignorant of....except they want a copy of the survey when it's complete.
Hinging on the fact that an easement is automatically extinguished if the grantee becomes owner of the servient estate. I can't remember the exact legal verbiage, but (at least in Oklahoma) one cannot dedicate an easement to themselves. Legally it's a meaningless document. Dedications can be made to run with the property, but must dedicate those rights to an entity other than the grantor themselves.
I assume that the husband and wife own the 220 acres jointly? Would it work if the 10-acre retirement casa was deeded to one while the remaining 210 acres is owned by the other? The 10-acre parcel would (at least in Colorado) be the dominant estate while the 210 acre parcel would be the servient estate. I assume that the parent parcel already has access so they could theoretically have a road that splits from it to the 10 acre tract without running into trouble with the town and their 150 foot frontage requirement.
Does that make any sense in OK? The only time I deal with easements is with mining claims. The question usually devolves to whether an old ore wagon road used for mining purposes can now be used for ingress/egress to a cabin.
paden cash, post: 417142, member: 20 wrote: It's all to satisfy the lender (and the town's council). Everybody is trying to avoid the existence of a land-locked piece. It's kind of funny, but the chances of that happening are fairly small since the owner is going to cash-out his construction loan upon completion of the house. His insurance company has also gotten into the mix in some way that I'm ignorant of....except they want a copy of the survey when it's complete.
Hinging on the fact that an easement is automatically extinguished if the grantee becomes owner of the servient estate. I can't remember the exact legal verbiage, but (at least in Oklahoma) one cannot dedicate an easement to themselves. Legally it's a meaningless document. Dedications can be made to run with the property, but must dedicate those rights to an entity other than the grantor themselves.
Is there some mechanism to create the 10 acre Parcel outside of Deeding it to someone else?
I would think some sort of recorded document while not creating the easement would at least raise a very strong presumption in favor of an implied easement if the physical road runs within the described strip. That is only necessary if the ultimate Deed to someone else forgets to reserve an easement. A R.E. Attorney would probably have a better idea.
Dave Karoly, post: 417149, member: 94 wrote: Is there some mechanism to create the 10 acre Parcel outside of Deeding it to someone else?
I would think some sort of recorded document while not creating the easement would at least raise a very strong presumption in favor of an implied easement if the physical road runs within the described strip. That is only necessary if the ultimate Deed to someone else forgets to reserve an easement. A R.E. Attorney would probably have a better idea.
I just need to know the name of a "grantee" to put on a dedication of easement that will satisfy both the title company and the town's permit department. My first suggestion was to the "public" but the owner doesn't like that idea and the town's attorney doesn't think that will keep the town from being responsible for the "access".
The larger tract can be described in an accommodation recording as being subject to reservation of an easement on separation of title. The smaller piece can have a like recording.
I would avoid playing games with names on title. I have a string of ex wives who are living proof insanity can strike at any time...
thebionicman, post: 417160, member: 8136 wrote: The larger tract can be described in an accommodation recording as being subject to reservation of an easement on separation of title. The smaller piece can have a like recording.
I would avoid playing games with names on title. I have a string of ex wives who are living proof insanity can strike at any time...
LOL! You've earned the right!
Jules J., post: 417161, member: 444 wrote: LOL! You've earned the right!
"..a string of..." does beg the question of: whom, exactly, was stricken?
Warren Smith, post: 417130, member: 9900 wrote: That sounds doable - a covenant recorded as a Notice of Restriction on the remainder parcel over which the access strip runs (the subservient tenant). Once entered into a sales agreement over all or any part, it becomes a "Subject To" clause in that conveyance at that later date. That should be satisfactory to the Title Company, lender(s), and the Building Department - not to mention the Fire Department, Ambulance Company, Pizza Delivery, and Amazon drivers, et cetera.
Warren, is there something special and different between and easement and a "notice of restriction"? To have an easement there must be dominate and servant estate, in this case there is only one estate with one owner. I know this is a problem in my territory too with agencies and planners dictating legal aspects of property. I spoke to a title company attorney about the issue of agencies requiring private property owners to create an invalid easement (easement to self) and his reply yes we in the profession all know that but once an easement is in the public record it is much more likely to be moved forward when one of the properties transfers. Either subject too, or excepting therefrom. My problem with the issue is when the easement doesn't transfer because the owner who is creating a home site thinks the easement runs with the land and transfers the adjoining property to someone in the know without excepting out an access easement. This actually happened to a friend of the family who was a lawyer (City attorney ;)) and a owner of a large tract of land. He forgot to except out his own personal driveway when selling part of the large tract and had to purchase the area back from the guy he originally sold the property to. Good discussion, thanks, Jp
To the Lender. Who else could benefit?
Why not use a real estate trust? Either deed the 10 acres, or the remaining 210 acres to a real estate trust, with your clients as the trustees. Maybe use 2 real estate trusts. Might even make estate planning easier - no need for a trust to go through probate.
foggyidea, post: 417135, member: 155 wrote: I think that it's pretty universal that you can't grant an easement to yourself.
Seriously?
I just did a quick search of the Pierce county public records and found the attached PDF. It's a matter of public record, so I don't think anyone will have any heartburn over me posting it...
Like I said, I see this all the time, around here.
