The standing required to successfully challenge an access easement would have to be an affected landowner. If one had come into possession without being put on notice that the driveway was an encumbrance on the PIQ, then someone had sat silently by on their existing rights to their own detriment.
In my state, you can grant a 40' easement through your own property, for a proposed homesite of 10 acres. If it is properly written and recorded, it attaches permanently to the 10 acres. For one thing, the doctrine that you can't landlock a property gives strong merit to the stability of the easement that should satisfy the lender. Future owners can not block an easement due to change of ownership, it is is an easement for access to the 10 acres. If it is clearly described and surveyed, it can be granted by oneself to one's own property, for the future access of the 10 acres, much like any other easement.
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....."
Reminds me of my Worker's Comp Insurance that requires me to maintain coverage on myself as an employee...yet it is against State law for me to file a claim. In the event I am injured on the job the only way for me to successfully file an insurance claim is for me (employee) to sue me (the owner) in Worker's Comp Court. What do you figure the profession was of the folks that thought that one up???
thebionicman, post: 417193, member: 8136 wrote: 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.
Flag lot is just a possible solution. According to Paden they have installed a city water line and so probably also built a road. Those are sort of hard to amend (move) later also.
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?
Look up Unity of Title or Merger of Title. One case that comes to mind is cheever v graves. That was somewhere back east but there are plenty of others scattered around.
In short, the easement from a to a is void on its face. Establish a reservation by the statutory method for your state and you will be miles ahead.
I would avoid advising my client on this beyond the location and description.
I had a client with an iron clad written access easement who had to sue his neighbor to remove a locked gate. Nothing is completely lawsuit proof. Funny thing is the lawyer beat the neighbor who hired him a few years later when another neighbor downstream did the same thing.
LRDay, post: 417237, member: 571 wrote: Flag lot is just a possible solution. According to Paden they have installed a city water line and so probably also built a road. Those are sort of hard to amend (move) later also.
Good point. If a substantial road is in place i would agree. Barring that I've come to realize how much we can help our clients keep as many rights in thier property as possible...
The access easement is not granted to anyone, it is available to the Mortgage company to access the property for inspection and in the event of foreclosure becomes their legal way to access the property and can be transferred if and when they sell the property.
MightyMoe, post: 417170, member: 700 wrote: I take it there is no Mortgage Deed exception to the subdivision laws there.
Not everyone is as cool as us.....
Just show a non exclusive private easement 60' wide for access and utility purposes in favor of tract 1 (the 10 ac. Tract)
Dave Karoly, post: 417240, member: 94 wrote: I would avoid advising my client on this beyond the location and description.
Around here, surveyors typically prepare these documents for clients based on the order of of a planning or public works department during a development application. The agency I work for asks for a shared access easements (cross access across two properties so one driveway can be used to a busy public road) when the owner owns both properties. If you are going to prepare this document as a surveyor I would think you would want documentation that you advised the client that based on the "common" doctrine of merger this document may not be worth the paper it is written on. Jp
Dave Karoly, post: 417240, member: 94 wrote: I would avoid advising my client on this beyond the location and description.
I had a client with an iron clad written access easement who had to sue his neighbor to remove a locked gate. Nothing is completely lawsuit proof. Funny thing is the lawyer beat the neighbor who hired him a few years later when another neighbor downstream did the same thing.
Around here, surveyors typically prepare these documents for clients based on the order of of a planning or public works department during a development application. The agency I work for asks for a shared access easements (cross access across two properties so one driveway can be used to a busy public road) when the owner owns both properties. If you are going to prepare this document as a surveyor I would think you would want documentation that you advised the client that based on the "common" doctrine of merger this document may not be worth the paper it is written on. Jp
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?
I noticed that only one of the Cris J. Johnsons signed this agreement. How can this be a valid agreement with only one of the two people signing it? Alternatively, how can it be a valid agreement with only one party involved, and he paid himself $10? Doesn't a contract require an exchange of some value between two parties?
Peter Lothian - MA ME, post: 417331, member: 4512 wrote: I noticed that only one of the Cris J. Johnsons signed this agreement. How can this be a valid agreement with only one of the two people signing it? Alternatively, how can it be a valid agreement with only one party involved, and he paid himself $10? Doesn't a contract require an exchange of some value between two parties?
It happens all the time in California. Owner votes to establish an Assessment District on a subdivision before he sales any lots, incumbering all future owners. Why he paid himself the $10 I don't understand either.
Peter Lothian - MA ME, post: 417331, member: 4512 wrote: I noticed that only one of the Cris J. Johnsons signed this agreement. How can this be a valid agreement with only one of the two people signing it? Alternatively, how can it be a valid agreement with only one party involved, and he paid himself $10? Doesn't a contract require an exchange of some value between two parties?
I guess I never really looked at it like 2 separate people; more like parcel A was granting an easement to parcel B. That is simply what is happening.
Now if you want to get technical:
- How can one person pay themselves $10? I can take a 10 dollar bill out of one pocket and put it in another.
- Can't give yourself and easement as you already have those rights. Why can't I? If I already have those rights; who's to say I can't double down?
In Washington State, the Auditor's office will accept any document, as long as the fee has been paid; it's formatted correctly, 1" margins, 8 point font and legible. I've seen some crazy things that will just make you shake your head in disbelief. Early in my career I was doing some research and came across a Deed; the legal description simply said: As described at the County Assessor's Office. I walked down to that office and asked for this description. The lady behind the counter gave me her best quizzical look and said all we have is the abbreviated version for tax purposes. I said; I guess that's what they're talking about...
It doesn't make it right, but anybody can file anything they want...
paden cash, post: 417213, member: 20 wrote: Things usually 'exist' if no one ever contests the fact of existence. 😉
If all that's a big deal about the easement, why not include the access strip as a part of the 10 acre tract. Then it's not an easement. If the tract is ever sold, it will have its own access.
I believe there has to be a consideration for the document to be valid according to the local assessor
Seems simple enough. It makes no difference to the owners as long as they retain title to both parcels. If for any reason they sell either the 10 acre parcel or the remainder, the 10 acre parcel has access. Of course, if they're like a lot of people, they probably don't want to build the driveway there.
JerryS, post: 417348, member: 205 wrote: If all that's a big deal about the easement, why not include the access strip as a part of the 10 acre tract. Then it's not an easement. If the tract is ever sold, it will have its own access.
The local codes require a minimum frontage width of 150', which kinda throws cold water on a small strip to the public road. The little town is just getting started with their "permits and inspection" department and this, no doubt, is just another learning experience for them and their evolving ordinances.
Since the code doesn't specify a minimum depth, I did throw the idea out there of a 50' strip that turned parallel with the road and then continued for 150'. Nobody thought that was a viable alternative....:(
Why can't the Survey Plat have a dedication which includes the easement for the benefit of the ten acre tract. It is a land division regardless of whether is is required to go through the platting process. I don't think being the same owner voids the easement, a mortgage creates another interest.