Easement/Property Value question

[karenstandefer]

When I purchased my property 12 yrs ago I received a title policy from the seller. This past year all of us my road have discovered we have no legal easement across the 1st 1/2 mile of our common road. It is owned by BLM. BLM will not give us an easement. We, as being a member of the general public, do have access to travel that road. So, we are not lanlocked. However, since the mortgage rules have changed and become more strict, a lender requires a perpetual easement, not a casual use permit, in order to finance any of our properties. One of the land owners was turned down a couple of months back for refinancing due to the easement problem. About 18 months ago one of the properties was up for sale and a prospective buyer walked away when they discovered (through the title company) the problem with the easement.

So, now I have two problems. One is that I need to make a case against my title company for a loss of value due to the easement because they have denied my claim twice (they did NOT call out any problem with the easement as an exception on the policy, but they now state that they don't insure against easement defects). I have hired an attorney, who has also contacted them, but they have also denied him as well. They claim I haven't been injured.

This situation is more complicated by the fact that I'm trying to get a mortgage modification. I have not informed my lender, yet, of the issue. I was hoping to get things worked out with my title policy first.

Is there any appraiser that could help me determine how much value my property loses because of the lack of legal right of way? This would also help me qualify for more mortgage assistance with the state, which means the difference in me keeping the property or losing it. I do realize that doesn't play into the equation at all, but it makes it more clear why I really need an appraisal at this point.

 

[The Warrior Monk]

Since this is a legal matter, I recommend contacting an attorney with regard to your situation. Appraisers can determine the value of a loss, but exactly what are the legal issues are must be defined first.

You already have an easement to access the property; it's just formalized.

 

[JTip]

You already have an easement to access the property; it's just formalized.

I believe a recorded 'road maintenance agreement' is a lender requirement. Their money, their rules. I'm sure you can find some money with the current access, your higher rate will reflect it.

 

[Sid Holderly]

Look up the BLM's deed and plat to see what it says. Many old subdivision outside of any town have streets designated to the public, but not accepted for maintenance by the county because they do not meet county road requirements. They are sometimes graded or plowed by the county as a courtesy, but they do not keep them up. The road through the BLM may be dedicated to the public. More research. If is is designated to the public they do not need to give a specific easement for you. This is research for an attorney or title researcher.

 

[karenstandefer]

Let's see...............In answer to David, if you read I do state I've already engaged an attorney and we're contemplating taking the title company to court as well as the BLM. And, NO, I don't have an easement. That is the problem. There is NO easement. There is an IMPLIED casual use permit which does not satisfy lender's requirements.

Road maintenance agreement is not at question here. The only question is how much does not having a legal ingress/egress across the BLM road that I must travel (there IS not other access other than by helicopter) devalue my property?

Sid, we've had the BLM come to talk to us several times. There are 6 of us affected by this situation. We all purchased our properties believing that we had a legal easement. We have just learned, this past year, that we do not.

Again, financial institutions who are lending money REQUIRE an easement or other legally documented right of way.

When the easement was originally given TO BLM (1965), the original land owner for all of this property did NOT retain right of way for himself. So, when he deeded that right of way to us on our individual warranty deeds, it appeared to be accurate. But if you look at the BLM easement to which he refers, it does not give him legal access across his own land to which he sold BLM the easement.

Two title policies, out of 11 (total) have called it out an exception, even as far back as 1972. But, mine did not. I would have never purchased the property if I understood there was an easement issue. And, my bank would have never loaned money for it. The title company is in error. They are not owning up to it.

Meanwhile, my only reason for coming here: How does one go about figuring out the devaluation to my property due to not having legal ingress/egress (defect in the title policy)?

Thanks for your help.

Karen

 

[Sid Holderly]

In this state a property can not be sold without a legal access. If a land locked parcel has none it is offered only to the neighbors. The county will not permit new land locked parcel to be created. Document all the history on the blm land and you parent parcels history.

 

[The Warrior Monk]

And, NO, I don't have an easement. That is the problem. There is NO easement. There is an IMPLIED casual use permit which does not satisfy lender's requirements.

I can't tell from your post is the property in question is improved or unimproved. I am assuming that it is improved; I would answer differently if it were vacant.

 

[karenstandefer]

I can't tell from your post is the property in question is improved or unimproved. I am assuming that it is improved; I would answer differently if it were vacant.

Hi David. The property is improved. And, just to reiterate, I'm not concerned with the legal issues at this point. They are being handled. The property was sold with the original owner BELIEIVING that he had an easement, but he did not. So, he transferred it to us not knowing that he had given away his right of way. He is now diseased.

My only question to this group is: How do I find an appraiser who can tell me how much my property is devalued by the lack of easement. I've called more than a dozen appraisers in my area and none of them will touch this. There MUST be an appraiser SOME where that is versed in this sort of trouble.

The BLM also will give the option of a yearly right of way fee that is re-assessed every 6 years (ie., goes up in price every 6 years). This will also devalue my property as compared to having been sold as having a perpetual easement, which is a lie.

Capiche?

Karen

 

[JamesRockford]

Your best source for the information you are seeking would come from a real estate attorney in your area that has expertise in your specific situation, i.e. easements and "casual use" permits. Also he/she needs to have expertise in deciphering title policies.

At the point all the legal issues are settled is when your attorney would get an appraiser involved in any opinion of value.

 

[karenstandefer]

In this state a property can not be sold without a legal access. If a land locked parcel has none it is offered only to the neighbors. The county will not permit new land locked parcel to be created. Document all the history on the blm land and you parent parcels history.

Hi Sid.

The same is true in my state as well. It was not sold without an easement. In 1965 all 11 properties in this area were one whole piece and owned by one person. There was one 3 mile long road that went through the middle of the larger property and also through adjacent public lands. BLM needed to have access to this area, so they went to the original land owner and offered him $$$ for an easement for the first 1/2 mile of the road, which adjoins the state highway. The land owner gladly gave them easement. But, the BLM document did not retain any right of way for the original land owner. At the time it wasn't a problem. There was a house on the very far end of this property and the woman who owned the house used this road for 20+ years for ingress/egress.

Then, the land owner split his land into 11 pieces and sold most of it off (retaining 4 pieces for himself). For all of those he sold, he gave a perpetual easement on the private road. In that same easement he also passed on the easement on the first 1/2 mile that he BELIEVED he retained when he gave BLM the easement. So, in each warranty deed, it appears that the easement is all in order. It isn't until you pull the contract between he and BLM that you can clearly see that he does not have the right of way to convey. It was an oversight on his part and POSSIBLY a mistake on BLM's part that nobody cared about until the banks recently changed the rules. Now, a person cannot get financing on any of the 6 properties without having the easement and since we all know about it, we would have to call it out on any real estate contract, which would SEVERELY limit the number of people interested in purchasing any of our properties. Some of us have the easement exception called out on our Title Policies and some of us have clear title policies. I'm one of the ones whose title policy did NOT list the lack of easement as an exception. Had they done so, I would NOT have purchased the place. And, certainly my lender would not have given me a mortgage.

Karen