Easement/Property Value question

[karenstandefer]

And, is the road now built? What did the contract for sale of the easement specifically say? What did it specifically NOT say? Not a recorded deed, the contract? Poorly written agreements often are double edged swords, "Beware the Doctrine of Mergers"

Best of Luck to You.

Yes, the road is completed (in 1968, I believe). The contract affords an EXCLUSIVE easement to the BLM. Exclusive easement is one for the exclusive use of the grantee. Here is a case explaining an appellate court's view of such an easement:

http://blog.aklandlaw.com/2008/12/a...vents-servient-landowner-from-using-driveway/

Karen

 

[leasedfee]

Karen,

In a very junior capacity, I wrote easements for an agency of the US government. For the uninitiated, an easement is not an easement is not an easement. An easement can be written to be squishy and meaningless, like a license acknowledging the other parties existence and protecting the servient estate's property rights. At the other end of the spectrum, an easement can be written to be iron clad to be equivalent to the fee simple estate. In this regard, the brief linked above said, "After reviewing the easement terms, the court declared that the overall structure of the grant, along with the specific enumerated rights of the easement. . . ." It is never good to draft a vague easement.

If I was in your shoes, the first thing I would do is meet in person the BLM realty specialists in your region, maps and deeds in hand with a signed letter from the other property owners (keep the crazies at home), and see if the BLM would be willing to relax or concede some rights. You might be surprised. I wouldn't rush to sue as it immediate puts all parties in an angry defensive mood -- Legal procedures are very particular and you are no longer able to have a human conversation.

If they are unwilling, then you are in the landlocked scenario and have to pursue the RON I've already elaborate. You might consider purchasing as a group the servient estate underlying the road as well to be able to control it.

 

[Webbed Feet]

Yes, the road is completed (in 1968, I believe). The contract affords an EXCLUSIVE easement to the BLM. Exclusive easement is one for the exclusive use of the grantee. Here is a case explaining an appellate court's view of such an easement:

[url]http://blog.aklandlaw.com/2008/12/articles/easements-1/keep-your-hooves-off-my-easement-exclusive-easement-prevents-servient-landowner-from-using-driveway/[/URL]

Karen

A California case. So, the original owner never sold the land and is no longer with us. Who "Owns" the land now, who has been paying taxes on it, who has been maintaining it, who has been insuring it?

 

[karenstandefer]

Karen,

In a very junior capacity, I wrote easements for an agency of the US government. For the uninitiated, an easement is not an easement is not an easement. An easement can be written to be squishy and meaningless, like a license acknowledging the other parties existence and protecting the servient estate's property rights. At the other end of the spectrum, an easement can be written to be iron clad to be equivalent to the fee simple estate. In this regard, the brief linked above said, "After reviewing the easement terms, the court declared that the overall structure of the grant, along with the specific enumerated rights of the easement. . . ." It is never good to draft a vague easement.

If I was in your shoes, the first thing I would do is meet in person the BLM realty specialists in your region, maps and deeds in hand with a signed letter from the other property owners (keep the crazies at home), and see if the BLM would be willing to relax or concede some rights. You might be surprised. I wouldn't rush to sue as it immediate puts all parties in an angry defensive mood -- Legal procedures are very particular and you are no longer able to have a human conversation.

If they are unwilling, then you are in the landlocked scenario and have to pursue the RON I've already elaborate. You might consider purchasing as a group the servient estate underlying the road as well to be able to control it.

Thanks for the advice. We've met with BLM 4 times now. They have offered us the ability to purchase a right of way for a one time paperwork fee and then a yearly fee that is reassessed every 6 years. This, also, is not acceptable to us as this will cause people to NOT be interested in purchasing our property. 7 years ago the yearly fee was $75. Last time it was assessed (2009), they raised it to $325/yr. There is no ceiling on the fee, so every 6 years it is assumed that it will rise. In addition, if they choose to do so, they can gate the road or do anything else with it that they deem appropriate. So, our neighborhood has come to a mutual agreement that this is NOT a solution that we can accept.

The next thing would be to elicit help from our State Senators in dealing with the BLM. After that would be pursuing an Easement by Implication through the court system. Since this is not an adverse possession type of easement, the thought is that it might work (you can't file an adverse possession case against the federal govt).

That is one issue. The other is the devaluation of my property, which is what I am trying to prove right now so that I can get my mortgage company to accept a reduced short sale offer from the State of Oregon. Oregon has this great program where they will purchase your property from your lender, for a reduced rate, if you are under water on your mortgage. According to the most current appraisal, which did NOT take into account the problem with the easement, I am NOT under water. However, any appraisal that would take into account that I do not have legal ingress/egress would also have to determine that a lending institution would not be interested in lending money for such a property, and would appropriately devalue the property.

This would also help me prove my case to the Title Company as I would like to be reimbursed for either my full policy amount or I would like for them to take the BLM to court to secure the perpetual easement we all thought we had.

 

[karenstandefer]

A California case. So, the original owner never sold the land and is no longer with us. Who "Owns" the land now, who has been paying taxes on it, who has been maintaining it, who has been insuring it?

Nobody pays taxes on it anymore. It is shown, on the county maps and the Tax Assesor's office, as a BLM road, not private land. The properties on each side of the road have since been since split into three separate tax lots and sold off (they were one tax lot before the easement was created). BLM maintains it every 10 years or so, by contract. We patch the holes in the meanwhile. To what insurance are you referring?

Karen

 

[gregb]

Some Oregon easement cases:

[url]http://www.water-law.com/resources/Easements.htm[/URL]

 

[Webbed Feet]

It is owned by BLM. BLM will not give us an easement.

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.

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.

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.

BLM now owns the 1/2 mile.
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.

Since this is not an adverse possession type of easement, the thought is that it might work (you can't file an adverse possession case against the federal govt).

Nobody pays taxes on it anymore. It is shown, on the county maps and the Tax Assesor's office, as a BLM road, not private land.

With respect, first the BLM owns the land, and then they do not own the land as they were only sold an easement, and then they own the land again. If the BLM owns the land, they cannot have an easement as owners of land cannot maintain an easement for themselves for something they already have the right to do as owners. The ownership extinguishes such an easement.
When your attorney, and you, figure out how the BLM came to own land they never purchased, please let us know.

 

[Mark K]

.... as owners of land cannot maintain an easement for themselves for something they already have the right to do as owners. The ownership extinguishes such an easement.

Not in this state; I've done it before. As owner of a tract of land that I was planning to sell, I had a drainage/utility easement for my future use prepared by an attorney and recorded it on my own property. I sold the property a few years later and the easement remains to this day. Having an easement for your use on your own land may be redundant but its not impossible.


But to the original issue. I don't think the chain of title to the road is overly important; either the BLM owns it in fee or has an exclusive easement, essentially the same thing, as stated by the court case.

The question that remains is whether or not the title company is liable for property issues that occur outside of the insured property and/or whether they are responsible to research and report potential access issues.

I don't know the answer but I'm sure there are some limitations to their liability. Should make for an interesting case.

 

[Webbed Feet]

Not in this state; I've done it before. As owner of a tract of land that I was planning to sell, I had a drainage/utility easement for my future use prepared by an attorney and recorded it on my own property. I sold the property a few years later and the easement remains to this day. Having an easement for your use on your own land may be redundant but its not impossible.

Doing that, and never having that easement challenged in a court of law, is not the same as proving it would stand in court. So go find us a case where it did. Ok?

But to the original issue. I don't think the chain of title to the road is overly important; either the BLM owns it in fee or has an exclusive easement, essentially the same thing, as stated by the court case.

What case, and if it is the one linked to earlier, that is not what was "stated" by the case.

The question that remains is whether or not the title company is liable for property issues that occur outside of the insured property and/or whether they are responsible to research and report potential access issues.

I don't know the answer but I'm sure there are some limitations to their liability. Should make for an interesting case.

I suspect there is a bit more than that involved.

 

[leasedfee]

As of now, without legal council and a detailed due diligence, we do not know what is the As Is valuation scenario. We do not know the hypothetical As If Unimpaired scenario because it could run into several possibilities. It's landlocked but it's not landlocked. It's a state case or it's a federal case. Of course, several hypothetical scenarios could be valued, but that'd be messy and expensive, and very likely to be modified as new facts and legal information is discovered. An appraiser would have to throw in numerous extraordinary assumptions, and god help the appraiser testifying in court, at this time, to his or her opinions of values. An appraisal to determine the before/after loss seems premature until the legalities and title could be worked out.