Recognizing an implicit easement

  • Recognizing an implicit easement

    Posted by jdsimmons on January 19, 2022 at 5:00 pm

    Good Morning and thanks in advance for any comments or suggestions. 

    We own a parcel of land in Arizona.   The parcel is home to eight trailer spaces six of which access their front doors, carports, their space in general from a public road.  Half of our parcel has a privately owned tract, not big enough to build any substantial structure, wedged in between four of our trailer spaces and the public road.  The tract in question was recently noted on a 2009 Plat Map and survey done as part of a redevelopment project which did not include our parcel.  The 2009 plat dedications say it is to be used for utilities, parking, trash collection and landscaping.  My family and our respective tenants have been crossing over the tract with our cars, boat trailers, parking on it, kids playing on it etc since 1978.  This pattern of use was occurring even before we bought the parcel. We essentially did not know the tract existed at the time we purchased our parcel in 1978, and I question if it actually did- in other words was actually officially recorded as a seperate tract.  I think it was part of the larger private development (i.e, not separated out) but now know due to the 2009 plat, and the fact that the ‘climate’ down there has gone from friendly vacationers and permanent residents (mostly retirees) to one of a land grab with people (mostly small time california developers and people with money trying to grab a piece of the action.  We are concerned that tract H whcih was conveyed to a private company will try to physically and legally block our access.  I am 90% sure we have a prescriptive easement but my question is this. 

    Did the surveyor violate any laws or our rights by not recognizing our ‘implicit’, if you want to call it that easement? 

    The use is open, hostile and has been for 50 years plus.  The need for the easement is obvious because of the cars, trailers and residences, power lines etc. It seems to me a gross oversight on their part.  Also, the reason they dedicated it to the developer and dedicated it for parking, was twofold.  1.) The developement plan required additional parking to get there plan through the county even though they (owner/developer never used it for parking purposes and 2). The surveyor/civil engineer had business relationship with the owner going beyond just providing civil engineering and surveying services…..he was quietly being given the lots, building the homes, then when they sold, paying off the owner for the lot so he had a lot of incentive to claim that tract the exclusive property of the developer, dedicate it for parking, and, ignore the fact that we had an need for easement there, even if not officially recorded .

     

    Andy Nold replied 2 years ago 14 Members · 38 Replies
  • 38 Replies
  • MightyMoe

    MightyMoe

    Member
    January 19, 2022 at 5:30 pm

    To answer any question, the 2009 survey would need to be shown.

     

  • holy-cow

    holy-cow

    Member
    January 19, 2022 at 6:34 pm

    Search for a competent real estate attorney.  That is, one who works routinely with real estate cases of a wide variety.  Do not tell them anything specific  when making contact, have them engaged prior to sharing all you know.  There may be various approaches that are applicable.  Saying too much may create certain problems you will not understand until the attorney explains them to you.  Lay out “what ifs” rather than making hard statements at first.

  • fairbanksls

    fairbanksls

    Member
    January 19, 2022 at 8:11 pm

    I’d continue using it just like it was 2009. Let a sleeping dog lie unless you feel like spending lots of money on attorney and surveying fees

  • jph

    jph

    Member
    January 19, 2022 at 9:00 pm

    I don’t know if anything is implicit?  You have frontage and access on another road.

    You may have a prescriptive easement, or even acquired title through adverse possession.  Or you may have nothing. 

    As others have said, you should probably hire a lawyer if you’re concerned about it.

    I can’t blame the surveyor for anything, if it’s a mostly vacant parcel.  How would he know who may’ve been using it, or for how long?  It apparently isn’t deeded to you, and someone else holds the title, by deed or some other manner.   Which is probably why it’s shown as such on the 2009 plan.

     

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 9:28 pm

    Mighty moe. thanks for the response.  See attached.  The dedications are on the left side middle of attachement.  The plat is attached. that is our parcel in the middle with the new apn on a sticky note.  

     

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 9:29 pm

    @holy-cow 

    This is very sound advice.  Sounds like you have dealt with this kind of issue before. 

  • lurker

    lurker

    Member
    January 19, 2022 at 9:39 pm

    You mention a gross oversight on their part. I think the gross oversight occurred when you purchased your parcel without finding out what you were actually purchasing. While you may be entitled to some type of continuing use of the tract H, it is not someone else’s fault for your lack of awareness.

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 9:54 pm

    @jph 

    thanks for the response.  you said, I can’t blame the surveyor for anything, if it’s a mostly vacant parcel.  How would he know who may’ve been using it, or for how long?  It apparently isn’t deeded to you, and someone else holds the title, by deed or some other manner.   Which is probably why it’s shown as such on the 2009 plan. 

    Surveyor’s responsibilites, legalities, deed etc. all that aside, and  because I know enough about what the surveyor knows about who comes and goes and where down there, his role in the development etc. and because its quite obvious there is a required access there for four of the spaces given the current layout of the trailer park,  I don’t buy in to “how is he supposed to know”.  Of course he knew it was being used as described.  And, its self-evident.  And the fact that is so self evident and has been for so long, means that in all likelihood we have an easement.  But my questions  is does a surveyor have responsibility to point out such…. and it sounds like your answer is no.  Correct?    There is access on other frontages to the parcel , but only for a portion of the park as it is currently layed- out. Four or so of the trailer spaces are only accessible (vehicles).  via Osprey Point Rd. Just FYI – there is a block wall and private property on much of the rear. pedestrian easement.  Only four spaces (5,6,7,8) are accessible from other frontages.  I think the plat map I attached will help shed light.   Perhaps the question then is-    given its a single parcel, but one divided into 8 functional spaces that are leased, do those functional eight spaces hold sway over the parcel in terms of how access, or lack thereof, is viewed and determined legally. 

    Maybe someone familiar with trailer parks can shed light.    Again, appreciate you comments JPH  

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 9:55 pm

    @lurker 

    Agreed. However if Tract H was not designated at the time of purchase, your comment is misdirected.  

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 9:57 pm

    Funny thing too that previous parcel maps, for example the one that would show our old APN seem to be unavailable.  Maybe someone could tell me how to get those. I have tried online and in person at the County accessors office and all they seem to say is this is the current plat map and that area is such a mess.   

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 10:04 pm

    @fairbanksls said I’d continue using it just like it was 2009. Let a sleeping dog lie unless you feel like spending lots of money on attorney and surveying fees

    I agree however we are not in a position to let sleeping dogs die as we are not dealing with sleeping dogs.   We tried to purchase the tract and they quoted an astronomical price IMO- between 30-60K and in the same sentence also said but its not for sale as we have other plans for it. Plans? I think its a bluff to get the price offer up.  Bluffing dogs yes,,,,but not sleeping dogs:) 

  • jdsimmons

    jdsimmons

    Member
    January 19, 2022 at 10:05 pm

    I should say ‘perhaps’ not affirmative ‘yes’.  ???? 

  • Williwaw

    Williwaw

    Member
    January 19, 2022 at 10:14 pm

    Seems a legal question and maybe someone here is licensed to practice law in your state by I’m not. my understanding is the fundamental issue with any prescriptive easement or AP claim is that until you have a legal decision in your state’s court of law, it’s just a claim. Unwritten rights may technically ripen when all of the legal requirements have been met, however without a court’s decision you have nothing legally enforceable. So the short answer to your question is no, the surveyor most likely did not violate anyone’s rights by not implying or inferring an interest in a third party’s property. In fact I believe he would likely assume quite some liability on several levels in making any such claim as he is not licensed to practice law or act as a judge. Good luck!


    Willy
  • andy-j

    andy-j

    Member
    January 19, 2022 at 11:03 pm

    Sounds to me like you’ve already got it all figured out!    No need to ask for assistance.   Good luck.

     

    PS… Is 2009 Recent?   

  • MightyMoe

    MightyMoe

    Member
    January 19, 2022 at 11:22 pm

    Is Tract “H” for sale? Lawyer’s fee for a cheap lawyer is about $250-300/hr. For one you could count on to win is closer to $500/hr.

    1500sqft can’t be anywhere near that. 

  • RADAR

    RADAR

    Member
    January 19, 2022 at 11:26 pm

    @mightymoe 


    I hope everyone has a great day; I know I will!
  • jdsimmons

    jdsimmons

    Member
    January 20, 2022 at 2:15 am

    @williwaw 

    well stated, thank you. 

  • dave-karoly

    dave-karoly

    Member
    January 20, 2022 at 4:01 am
  • dave-karoly

    dave-karoly

    Member
    January 20, 2022 at 4:54 am

    It looks like the Parcel in question has a metes and bounds description with a remote tie to the government lot corner. It is way at the north end of Yuma County.  The County GIS shows parcels and parcel numbers (but no book and map no. what the ?).  After some noodling around on the Assessor’s parcel search thing I found it.

    The east line of the parcel along Osprey (or Cedar) is straight.

    I don’t know how the street (appears to be private) came to be in existance but it curves away from the east parcel line, unfortunately.

    An implied easement only arises between grantor and grantee.  So for example if this parcel was cut out of the parcel with the street on it, and the street existed when that happened, and the grantee had a reasonable expectation of access to the street then there could be an implied easement.

    All of the answers to these questions would take a lot more research.

     

  • jph

    jph

    Member
    January 20, 2022 at 12:51 pm

    @jdsimmons 

    My mistake, then, I guess.  I thought you were looking to see if the actions of the surveyor would lead to the conclusion that he was unethical or underhanded. 

    What I didn’t understand right away was that you already had that conclusion, and wanted confirmation that his actions were also.

    Andy was right.  You already seem to know it all.  Good luck

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