According to Donald Wilson in 'EASEMENTS RELATING TO LAND SURVEYING AND TITLE EXAMINATION'
he states on page 85 that "easements may be terminated by a variety of methods...." then goes on to list:
1. Expiration
2. Release
3. Merger of title (what the post is about)
4. Abandonment
5. Estoppel
6. Prescription
7. Destruction of the Servient Estate (what this post is about)
8. Cessation of necessity (what the post is about)
9. Eminent Domain
10. Frustration of purpose
11. Cessation of special purpose (what the post is about)
12. Overburden
13. Death: of the owner of an easement in gross.
He goes on to detail each one of these in the rest of the chapter.
As stated earlier someone would have to challenge those rights and Some will. Jp
billvhill, post: 417360, member: 8398 wrote: Why can't the Survey Plat have a dedication which includes the easement for the benefit of the ten acre tract.
Even in the case of a "dedication" there is an entity that "receives the dominant estate" rights of the easement, considered the grantee. In the case of plats around here the public is generally the grantee and is stated so in the dedication. In this case we were merely attempting to record a standard "Grant of Easement" form in which the owner will grant access rights to an entity. I just wanted to know whom to list as the grantee.
I did call my attorney yesterday to ask if the grantee had to be a person or entity. I'm thinking the owner could grant the easement to the NW/4 of the NW/4 of the SE/4 and all future owners and assigns. He has not yet returned my call. If you ever have general counsel, make sure it's not your retired older brother...
The Town and the client have apparently ironed it out and the town will accept a non-exclusive easement to them as "access only".
6 Miller & Starr Cal. Real Est. å¤ 15:42. Recorded covenant (4th ed.)
Easements may be created by recorded covenants. An easement can be created by a recorded covenant that becomes a covenant running with the land, 1 or an equitable servitude between two or more parcels of land upon the conveyance of a parcel that is benefited or burdened by the easement. 2 However, under general principles, an easement is not created by a recorded covenant unless it is created in connection with an agreement between owners or in relation to a conveyance of land. 3
Standing to challenge. No person has any standing to enforce or challenge the covenant, or any amendment thereto, or its
release, except the city or county and the owner of property that is benefited or burdened by the covenant. 14
1 Bryan v. Grosse, 155 Cal. 132, 135, 99 P. 499 (1909).
See å¤ 16:2 (definition and explanation of covenants that run with the land), å¤ 16:5 (creation of covenants).
2 See å¤å¤ 16:9 to 16:16 (equitable servitudes; creation).
14 Gov. Code, å¤ 65875.
Ok I think I have learned something. If the access easement was created with a recorded covenant, then most likely it will run with the land. I would still have the owner that granted the covenant, grant access as described in the covenant if buying the servant property. Last thing I want to do is spend my money on a lawyer and court. If the properties had already sold in the past I would want to make sure my title company was good to insure access rights. Jp
p.s. as stated earlier I directly asked these same discussion points to a title lawyer a few years ago and did not get a definitive answer that a recorded covenant would serve the purpose. Could it be different in Oregon?
billvhill, post: 417350, member: 8398 wrote: I believe there has to be a consideration for the document to be valid according to the local assessor
Just because consideration is what you want; doesn't mean consideration is what you will get...:cool:
There's a lot of selfish people out there; you won't get much consideration from them.
paden cash, post: 417356, member: 20 wrote: The local codes require a minimum frontage width of 150', which kinda throws cold water on a small strip to the public road.
Rules, rules. It isn't a frontage in the sense they wrote the ordinance for, to keep from crowding houses very close together. It's a driveway, for heaven's sake.
Bill93, post: 417411, member: 87 wrote: Rules, rules. It isn't a frontage in the sense they wrote the ordinance for, to keep from crowding houses very close together. It's a driveway, for heaven's sake.
I know Bill. I hate rules too. 'Specially silly ones that are actually counter productive. There are three residences in this section...my client's will be the fourth.
I've had a couple of short conversations with the town "code enforcement/ building inspector/ water plant operator/councilman/ dog-catcher" and he's getting an education. I am too.
I had thought (and I was partially correct) they had merely cut-and-pasted a few ordinances together from some of the closer larger cities. Something I wasn't aware of was some of the requirements they have to meet to operate their public water system.
But after a chat with him I came away with the impression they were trying to "customize" their codes and ordinances to keep their long-term residents happy, keep the riff-raff at bay and provide what they felt was a wholesome and safe place to live. I told him good luck with that, everybody else has been trying for years and council chambers are still filled with hot-headed arguments.
This case was an eye-opener for them all when they realized following their rules wouldn't be as simple as they thought. Their rules are almost specifically geared for "development" and nobody realized that some of their codes may actually be hindering the natural growth of the area and a private citizen wanting to build on their own property. There's been a lot more problems than just this stupid access easement. The inspector told me, "you just can't adopt codes that will fit every situation". I told him everybody keeps trying though.
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.
Does anyone have a sample Notice of Land Use Restriction where a public entity reserves rights (similar to an easement) unto themselves for some purpose (other than public access/use)?
I want the municipal version of a Federal Withdrawal
I have a situation where a municipal entity wants to create an easement on their own land for the purpose of constructing a rail line which they want to manage. The creation of an easement without a second party grantee is problematic - based on the content of this thread and rudimentary research I suspect that merger of title can be denied under the right conditions with the support of an attorney but the Notice of Land Use Restriction sounds like a better fit (on the surface).
And yes I've seen tons of easements granted from a city to the same city and I've also seen that same city convey the parent parcel to another party without referencing the easement - that's a mess that we can probably avoid by using another instrument. I'm thinking Notice of Land Use Restriction may be a winner - any other suggestions?
Thanks
?ÿ
He has permanent access, he owns it all.?ÿ The lien will be on all of the tract.?ÿ When something is sold, an easement will be retained and the lender will release the lien on the portion sold.?ÿ That's the way I've seen it done.
John,
The use that I have seen a Notice of Land Use Restriction has been to serve as disclosure to future buyers of property that restrictions apply.?ÿ I suppose it can be constructed to alert the parties to a future transaction that an easement will be required to be reserved in the grant deed.?ÿ I'll rustle up a sample for the generic language, and you can use it for a template.
It's predicated on statutory and local ordinances to achieve its stated goals, so you will want to have it reviewed by counsel for your situation.
Here's a sample of a Notice of Minor Subdivision Restriction.?ÿ Similar areas are covered, such as the Right to Farm (declared by the Board to not be a nuisance to neighbors).?ÿ As you can see, they are cross-referenced by the Recorder's staff to the filed map.
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...
Maybe the way to go.?ÿ I've had the discussion with our county commission.?ÿ They want an easement to the new parcel.?ÿ I couldn't get them to buy into the idea that you can't own and "easement" over your own land.?ÿ You don't need an easement as you have the right to use the land for access.?ÿ If you separate the ownership at some later date then you would need an easement.?ÿ This is tricky stuff!
Thanks LRDay
Since this is a slightly different thing than Paden was discussing I've moved the conversation to?ÿ
https://surveyorconnect.com/community/surveying-geomatics/municipal-withdrawal/