Easement/Property Value question

[Webbed Feet]

BLM now owns the 1/2 mile. Or at least that is the way it is being interpreted by the financial lending institutions. <....snip.....>

Financial lending institutions, last I checked, are not empowered to make any such "interpretation."

It is a very simple question. Was the BLM sold the land, or sold an easement? If an easement, what type and with what kind of restrictions or rights to use the land?

 

[Michigan CG]

I am a pretty smart cookie and smart enough to know that I would not take on this assignment. While my license is the same as Mr. Kulman and Mr. Lindsey I certainly know that they have far more knowledge than I do about this type of situation.

That being said, take their advice most in this thread. Here is my advice, in my county I have a lot of people who call me and am considered an expert by many in my county. If this situation were in my county and someone called me to assist I would turn it down. Just like all appraisers don't have similar expert levels, neither do attorneys. Make sure your lawyer is truly an expert in real estate and if he recommends an appraiser make sure that the appraiser has the experience the attorney thinks he does. I am certain that some attorneys in my town would think I am qualified to sort through all of this; they would be wrong.

Finally, I think that all of the people in your neighborhood will be affected by this and it might be the case that this should be a neighborhood effort to share the expense. Most likely this is not going to be cheap and your checkbook is going to suffer greatly.

 

[leasedfee]

. . . 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 forget all of the bureaucratic buzzwords, but the BLM has inter-agency agreements with federal, state, local transportation agencies. They also have road management plans and do land planning, sometimes requiring environmental impact states, etc. One road may be designated for heavy public use, like all terrain vehicles et al., while another road may be designated for wilderness use only. You have to get the documents from the regional realty specialist.

 

[Mark K]

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.

I haven't seen the subject's Sch B Exceptions but my general point is this: Title companies are responsible for insuring and guaranteeing clear and marketable title. Is it also their responsibility to guarantee access to said parcel? A parcel can be landlocked and be marketable, usually to a very limited market, but still marketable.

Again, I don't know the answer. On first glance you'd think so but I'm not so sure. Standard language on Sch B Exception in this area say something to the effect of "...issues that would be discovered by a survey of the property if none was done...".

Without knowing the purpose of the BLM road and their ability to limit traffic thereon, its difficult to make a reasonable guess at the "damages". But as far as a homeowner claim vs. the title company for access due to issues involving real estate outside of the subject, my money would be on the title company if they chose to fight it instead of make an administrative settlement.

 

[David Mescon]

Karen, you have received advice from a number of appraisers who are generally considered to be among the best of the best. Free advice at that, so you're getting a really good deal.

I used to specialize in all things "diminution of value" related, and have substantial experience with condemnation and inverse condemnation. I have performed a decent number of appraisals for title companies pertaining to diminution related to title defects.

I'm a bit of a perfectionist, but more so a pragmatist. Based solely upon the information you have provided, it is my personal, non-lawyer opinion that you are on the right track.

The title company will likely be the path of least resistance - you should be able to adjudicate or settle outside of federal court, and, if the easement is, in fact, a specifically scheduled item, the odds are probably in your favor.

The inability to finance your home may well have a very substantial adverse impact upon both the value and the marketability of your home. This type of analysis is generally more tedious than complex, and usually requires many hours of research and verification. My fees for this type of assignment typically ranged from a low of eight or nine thousand up to around thirty thousand dollars, possibly a little more. Your lawyer's fees will likely be at least around the upper end of that spectrum, quite possibly even double that. Those fees may or may not be recoverable, depending upon the laws in your state, about which I know nothing. As has been mentioned, previously, your attorney should be able to recommend one or more appraisers competent to do this assignment. If your attorney cannot do that, you NEED to change attorneys. The best appraiser in the world will be useless unless your attorney is truly an expert in these types of cases. If you need to change attorneys, one of the questions you might want to ask is the prospective attorney's win ratio. I wouldn't touch anyone under seventy to eighty percent, minimum. Best of luck to you!

 

[karenstandefer]

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.

Yes, I've already done the full search. I have all the documentation needed to go to court.

Colorado's constitution prohibits landlocked parcels

Oregon's does too. And, technically we're not landlocked, which is what presents the most trouble getting the Title Company to own up to the issue.

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.

I went to the county and found every single transfer of this property from the time it was owned by the Federal Govt to present day owners. So, we can go to court and show an easement by implication. But, we're going to need someone to pay for all these court costs, which is why I am trying to show the Title Company as culpable. To do that, I have to show some sort of injury. That injury is that my land is devalued. But, I have to prove that, some way.

Karen



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

 

[karenstandefer]

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.

This IS a change in the financing requirements since the crash. And, as far as I can tell, it is a change that went into affect within the last 2 years. Prior to that, no financial institution cared, as evidenced by my two neighbors whose title policies called out the problem decades ago, but were able to receive conventional financing just the same.

Still, my Title Company should have found the issue and at least called it out as a problem (since it was identified to be a problem, per the other Title Companies, since the 1970's).

Karen

 

[karenstandefer]

It is a very simple question. Was the BLM sold the land, or sold an easement? If an easement, what type and with what kind of restrictions or rights to use the land?

I don't believe this question is even relevant since it has already been determined by attorneys, financial institutions, the BLM and two financial institutions that there is no easement for our ingress/egress. It is not just me that has determined there is a problem.

But, to answer your question, the BLM was sold an EXCLUSIVE Easement that gives them full control of the land in order to build a road.

Karen

 

[karenstandefer]

Thank you, David

 

[Webbed Feet]

I don't believe this question is even relevant since it has already been determined by attorneys, financial institutions, the BLM and two financial institutions that there is no easement for our ingress/egress.

Really? Did they write up, and make public for the courts, a Final Judgment while they were at it?

It is not just me that has determined there is a problem.

Did I accuse you of being the only party thinking there is a problem? No, I was reading posts responding back to you as if the land had been sold to the BLM when you specifically started out posting an easement was sold, not the land. However, some of your following posts caused it to be confusing what had occurred.

But, to answer your question, the BLM was sold an EXCLUSIVE Easement that gives them full control of the land in order to build a road.

Karen

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.