paden cash, post: 417158, member: 20 wrote: 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 answer lies in "who would be the beneficiary of the future easement"? the only likely party is the lender - in case of future foreclosure. The ones I've seen have the easement only included in the deeds of trust (or other lender documents).
Why is the town concerned with this at this time - it is none of their business, unless they are (I've seen stupider things) requiring public access to the parcel.
In these situations, I provide the survey and description of the parcel and a separate description of the "proposed easement". I let the Title Co., lender, attorneys, etc., worry about the non-survey issues.
A recorded Notice of Land Use Restriction encumbers the property so described and for a specific purpose. It imparts constructive notice to a future class of purchasers or other third parties. The logistics of including all the proper Subject To's and Together With's are left to the proper parties charged with the execution of those future transactions.
I take it there is no Mortgage Deed exception to the subdivision laws there.
paden cash, post: 417125, member: 20 wrote: 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?
I'm on a planning commission and have argued that a ÛÏflag lotÛ of this size shouldn't be subject to frontage requirements, it just makes no sense. But, rules are rules. Could they ask for and be given a variance to allow the 40 foot road as part of the lot?
Easy to see a lender that doesn't want to end up with a landlocked property.
Can't give yourself and easement as you already have those rights.
The flag lot looks like the best solution to me if the ptb will accept it. That settles the matter for the future.
Brian Allen, post: 417167, member: 1333 wrote: Why is the town concerned with this at this time - it is none of their business, unless they are (I've seen stupider things) requiring public access to the parcel.
The towns that were concerned told me; it's a matter of safety. fire trucks and ambulances need unobstructed access. If a fire truck can't get to the fire in time and a baby dies; the city doesn't want to be liable because they permitted it. Or at least that's what I've been told...
LRDay, post: 417171, member: 571 wrote: Can't give yourself and easement as you already have those rights.
You won't own the property for eternity; eventually, someone else will own it and the safe, legal access will already be in place...
We perform this type of survey all of the time. We would survey the ten acres and the easement (30', 40' wide, whatever is required) and provide a description of both (survey of the easement in MS is considered boundary surveying and must be monumented as well). A Deed of Trust is prepared using this description, so the landowner (Grantor) would be granting the lender (Grantee) the easement in the case of foreclosure. Once the loan is satisfied, the Deed of Trust is canceled and the property no longer has a lien on the ten acres and the easement is not required.
We don't have any type of subdivision requirements or review boards to have to please though. I surveyed 0.50 acre out a 160 acre parcel this morning with a 2600' easement (30' wide) for a man to deed his mother a spot to build a house.
RADAR, post: 417166, member: 413 wrote: 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.
Yep, that is exactly what I have seen done in California.
RADAR, post: 417184, member: 413 wrote: The towns that were concerned told me; it's a matter of safety. fire trucks and ambulances need unobstructed access. If a fire truck can't get to the fire in time and a baby dies; the city doesn't want to be liable because they permitted it. Or at least that's what I've been told...
You won't own the property for eternity; eventually, someone else will own it and the safe, legal access will already be in place...
The problem is, the easement wont be in place. Unity of title extinguishes the easement. Sale doesnt resurrect it. Creating a reservation effective on separation of title is the best mechanism.
As far as flag lot, that makes the access location hard to amend later. I would tend to avoid that if possible.
thebionicman, post: 417193, member: 8136 wrote: Unity of title extinguishes the easement.
I don't want to sound picky; but do you have a cite for this?
I can't say I've ever heard that before, but then I'm learning new things every day...
How do you get by number 3, in the document I linked?
This may clarify things (it did for me anyway)...It's looking like the town is going to get an 'access only' easement dedicated to them. My client paid out-of-pocket to have the town's water main extended 2200' so he could enjoy their placement of a fire hydrant (must be why the insurance company wants a copy of the survey...guess I need to show the fire plug...). The line is in now, but the owner has NOT dedicated an easement to the town yet. I believe they are tweaking the easement wording (and width) to allow ingress and egress. This (thankfully) cuts me out of the loop except for showing all this new junk on the survey.
It just goes to show how a town council, a lending institution and a couple of attorneys can make things complicated..
maybe now my phone will quit ringing...;)
An appurtenant easement can be held to be attached to the land which it serves, rather than the individual who has title to it. They are not extinguished by a failure to incorporate into a subsequent conveyance description.
The creation of such an easement is generally done as a reservation at the time of severance from a parent parcel.
It sounds as if Paden's client will have a non-exclusive waterline easement which will provide an access easement of necessity.
RADAR, post: 417195, member: 413 wrote: I don't want to sound picky; but do you have a cite for this?
I can't say I've ever heard that before, but then I'm learning new things every day...
How do you get by number 3, in the document I linked?
My reference cites these (among others) concerning the extinguishment of an easement under the doctrine of merger (Easements - Donald A. Wilson - Merger of Titles) - "Since one cannot have an easement in their own land, since by definition an easement is a right in land of another, termination is automatic when one entity owns both the dominant and servient estates at the same time. This causes the easement to merge into the fee. This is sometimes called " merger of ownership."
First Natl. Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 30 A.L.R. 2d 958 (1952)
Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161 (1821)
Atlanta Mills v. Mason, 120 Mass. 244
So the attached easement isn't worth the cyber space it's taking up?
RADAR, post: 417211, member: 413 wrote: So the attached easement isn't worth the paper it's written on?
I wouldn't say that.. Things usually 'exist' if no one ever contests the fact of existence. 😉
"Easements may remain unaffected by unity of estates, or revived upon separation if a valid and legitimate purpose will be subserved thereby. Schwoyer v. Smith 131 A.2d 385, 388 Pa. 637 (1957)
Yep - while it may be voidable, that would require someone with the standing (and willingness) to challenge it. Necessity covers it.
An option would be to create some entity that he could deed the 210 acres to while retaining a non-exclusive easement over a specific path across the 210 acres while keeping the 10 acres in his ownership as it is now. Lots of people have something set up like that to bring in their heirs as partial owners. Then they gradually transfer fractional interests each year to the heirs up to the statutory limits.
RADAR, post: 417211, member: 413 wrote: So the attached easement isn't worth the cyber space it's taking up?
It's fun to imagine how clause #9 might be needed: "In the event of a dispute between the parties....."
Warren Smith, post: 417215, member: 9900 wrote: Yep - while it may be voidable, that would require someone with the standing (and willingness) to challenge it. Necessity covers it.
People that are not nice challenge them all the time, especially when dollars are involved. I think it is in our best interest as land surveyors to opine in the most conservative manner. Almost everything we speak of on this board has a snowballs chance in hell of ever coming to be, but when a client looses his right of access, I sure don't want to be the one that did not opine correctly or within the generally accepted standard of practice. Paden quoted above from the same reference I am aware of "Wilson" together with a general Google search will reveal the same opinion from attorney's white papers on the subject. Jp
BajaOR, post: 417220, member: 9139 wrote: It's fun to imagine how clause #9 might be needed: "In the event of a dispute between the parties....."
Amen, the attorneys get paid for arguing both sides of this one and most all of what we discuss on this board, we only get the liability for being wrong. Jp