Easement/Property Value question

[Terrel L. Shields]

I respectively disagree with Mr. Wimpelberg, you cannot get an easement by prescription from the government, and no you don't have an easement.

I doubt you can sue the government. What you might do is propose a land swap of some sort. Literally trading them something in land for the deed (not an easement.) It is common for the BLM to deed off properties as convenience for access, etc. but suing the title company also seems a mite like joisting the windmills. And even if they rebate your loss, well..so? That's not going to solve the financing issue.

 

[karenstandefer]

I'm confused. Karen's posts leave some seriously unanswered questions.

She states that the original owner, now deceased (I don't think she meant now diseased), sold an easement involving something to do with half a mile of private road. He did not sell the BLM the land, and we have no idea what that easement the BLM received was for.

Who today owns that half mile stretch? Why would the original owner have to reserve an easement for himself to land he is not selling, owns, and is using? I cannot help but believe something is not being posted correctly by Karen.

BLM now owns the 1/2 mile. Or at least that is the way it is being interpreted by the financial lending institutions. They are the only ones that are concerned about this situation. If it weren't for them and the new lending laws, none of us would be in this mess.

And, yes, I did truly mean that the original land owner is now deceased, as in he doesn't live anymore. He died in the 1990's.

The way that the BLM wrote up the contract, between Mr. Original Landowner and the BLM, was for an exclusive easement which stripped Mr. Original Landowner's authority to convey an easement on that portion of the road. On the rest of the road, which is private and owned by our road maintenance group (not by BLM), we have no problem and the easement he conveyed to us is legal (meaning the financial institutes approve of it).

My property is not landlocked. None of us are. But, we do NOT have legal ingress/egress because our only rights on the 1/2 mile of BLM road is by "casual use permit" only, which the financial institutes do not recognize as being a legal right of way. In the past none of this mattered. Although, as far back as 1972, at least one of the Title Policies called out this problem with the easement. But, when I purchased my land in 2003, it was not called out and it fact is listed on Schedule A as a covered item.

 

[karenstandefer]

Timothy J. Lindsey MAI

Thank you so much for your comments. You are spot on about getting the attorney and the appraiser on the same page. It's very difficult to get people who are closely involved to step back and see the separate issues.

Karen

 

[karenstandefer]

I doubt you can sue the government. What you might do is propose a land swap of some sort. Literally trading them something in land for the deed (not an easement.) It is common for the BLM to deed off properties as convenience for access, etc. but suing the title company also seems a mite like joisting the windmills. And even if they rebate your loss, well..so? That's not going to solve the financing issue.

Suing the title company actually would fix my financing issues as it would allow me to sell this place at an extremely reduced price and not lose everything I already have invested.

We have already approached BLM with a trade. They didn't bite. They don't have a problem travelling our private road to access their otherwise inaccessible land. I suppose we could gate off our road so that they can't enter anymore and that might change things. On the other hand, they could also gate off the BLM road and cause us to have to get out of our vehicles and open/close the gate each time we enter/leave our homes. So, probably shouldn't try to play hardball with them.

There is another prescription that I'm surprised nobody on this forum has come up with . but, it is costly and would also severely devalue my property. The problem is that the devaluation is difficult to prove.

That's why I'm here

 

[karenstandefer]

I doubt you can sue the government. What you might do is propose a land swap of some sort. Literally trading them something in land for the deed (not an easement.) It is common for the BLM to deed off properties as convenience for access, etc. but suing the title company also seems a mite like joisting the windmills. And even if they rebate your loss, well..so? That's not going to solve the financing issue.

Why shouldn't the Title Company be responsible for reimbursing my loss? They didn't do their "due diligence" when writing the policy. They should have reviewed the underlying document (recorded at the county), which they did NOT do. Had they called this out as an exception, I would NOT have purchased this land. Or, I would have at least made sure the seller corrected the problem before I went forward with the purchase. They deprived me of my right to be able to protect myself. This IS the ultimate reason we purchase title insurance!

They did uncover an easement across my place for "the people of the United States of America" which I was able to ride myself of before proceeding forward with the purchase of the land.

 

[Mark K]

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.

The damages to the property, i.e. your claim vs. the title company, may be as simple as the net present value of the amount of the annual r/w fee to be paid to the BLM.

Also, this is likely the most expedient solution and will allow you to refi or sell. I'm assuming the lender will accept this type of arrangement.

I've performed many appraisals for homeowner claims vs. title companies due to undiscovered/undisclosed easements. Its not rocket science but the appraiser has to be familiar with this type of work.

I'd contact the OR chapter of the International Right of Way Assoc. R/W appraisers deal with damages all the time.

It will be interesting to see is the title company is liable. They search for defects on the subject property title and I'm not convinced that its their responsibility to search for items that affect access. As you said, the found the easement over your property so is it their job to search adjacent properties as well? I don't know the answer.

I'm certain that you believe it is but as a legal matter, I'd say a judge will have to decide. If the deed warrants an easement access it seems to be a claim against the previous owner.

 

[leasedfee]

It will be interesting to see is the title company is liable. They search for defects on the subject property title and I'm not convinced that its their responsibility to search for items that affect access. As you said, the found the easement over your property so is it their job to search adjacent properties as well? I don't know the answer.

I'm certain that you believe it is but as a legal matter, I'd say a judge will have to decide. If the deed warrants an easement access it seems to be a claim against the previous owner.

I've come across a couple of landlocked subject parcels. The title company, here, listed Schedule B Exceptions as being as landlocked. It, however, could-would be tough to pick up in a title search -- but that's the risk you take being a title insurance company.

Karen, the word of the day is "parent parcel". When the parent parcel sells off a landlocked parcel, the RON would be against the parent parcel from which the subject evolved. This requires chasing the "chain of title" (i.e., its genealogy) back to when the title defect occurred. It tells you which parcel then has to resolve the defect.

Colorado's constitution prohibits landlocked parcels -- wild guess, but I suspect newer states may have similar provisions. Colorado has a more relaxed interpretation of curing the defect against the parent parcel. On the other hand, my understanding of New Mexico, according to our Mr. Property Economics, has a SOL approach to the landlockee.

Sometimes you luck-out in doing your historical title research and find a missing document that gave the subject "appurtenant" (second word of the day) property rights -- that the prior owners forgot about. You definitely need to mind your Ps and Qs in your research.

As the Feds are involved, they are not subservient to the state courts. Yeah, it will be interesting how this plays out.

 

[Ken B]

The OP has access to and use of the property. She is having difficulty finding financing for the property from the typical sources. A buyer may also have difficultly finding financing for the property from the typical sources. A buyer may have options for financing from other than typical sources. How much would a buyer discount the property due to the requirement to pay cash or find alternative financing, perhaps from a private source that doesn't care that the BLM won't grant a ROW easement?

I'm not sure that the value impact is "substantial" based strictly on the comments in this thread.

 

[Ca Ar Independent]

Doing one right now. The subject is bank owned, has been on and off the market for 4 years, and was under contract three times. There has been zero mention of the access issues or the fact that the subject does not have road frontage. Title didn't pick anything up and of course, the listing (and selling) agent sounded "surprised" that it may be a landlocked parcel. It's currently in the hands of the client, realtor, title, and lender to check out the (basically 2) options which grant the access (currently in use) and find where is is granted to the subject, if it indeed is. The sad part of this is that the realtor would have been HAPPY to gloss over this and sell the parcel to the buyer without legal access.

 

[Ken B]

I'm sure that the OP knows more about her situation than I do, but since many roads travel through BLM land, how does anyone obtain financing for their property if they have to travel on a roadway through BLM land. We aren't just talking 14' wide gravel driveways...we are also talking major transportation corridors.

I have to think that someone is misinterpreting something or there are an extraordinary number of people who have been adversely affected by some recent change.

But I readily acknowledge that my knowledge is basically non-existent regarding this particular issue.