Easement question

[Gobears81]

This is a question that isn't on a residential property but could potentially apply to any property type, so posting in the general appraisal section. If a property has an easement that was acquired by an entity that has power of eminent domain, can said party transfer the easement rights to an entity that does not have power of eminent domain without the consent of the original property owner?

Thanks

 

[Zephyr999]

Sure, just like transferring a billboard except via sale. Or conservation easement from local to national...fyi I'm not a lawyer.

 

[CANative]

Wouldn't it depend on the terms of the easement?

 

[Zephyr999]

Easements = separation of rights but to what degree would that prevent transfer? Maybe if it's an Indian Burial mound??

 

[Terrel L. Shields]

Maybe if it's an Indian Burial mound??

That is not an easement. It falls under the Native American Graves, Protection and Repatriation Act (NAGPRA.) Problem on Indian (usually Mississippian culture) mounds is that many of the mounds were not burial mounds but ceremonial and stopping development is difficult in that case. Preservation easements are often sought by tribes in that case, but usually cannot stop development and many of the more complex mounds along the Mississippian and Ohio River valleys have been severally damaged by developers and towns themselves.

 

[Elliott]

It would make the question easier to understand if it were described using appropriate terms:

"The party gaining the benefit of the easement is the dominant estate, while the party granting the benefit or suffering the burden is the servient estate."

Haven't written many easements, but they tend to run with the title, but could also be written to be extinguished.

 

[Gobears81]

I guess the reason that I'm asking is that if it were a private entity selling an easement on their land to another private entity, then yes it most cases would go with the title. But if an entity with power of eminent domain compensates for an easement, there is not always a willing seller. So if they eventually see some private entity on their site, it would seem odd that they wouldn't have any recourse at that point

 

[Carnivore]

This is a question that isn't on a residential property but could potentially apply to any property type, so posting in the general appraisal section. If a property has an easement that was acquired by an entity that has power of eminent domain, can said party transfer the easement rights to an entity that does not have power of eminent domain without the consent of the original property owner?

Thanks

Short Answer: Yes. Read & Weep - IMHO this is one one of the worst decisions of the Supreme Court has ever made.

Source: https://ij.org/case/kelo/

I didn't post this to end the discussion. I will say you have some of the most interesting assignments.

 

[Carnivore]

This is to interesting of a topic to let it die. So I would like to expand this into a more serious discussion.

Can we take it deeper and expand this into Takings in General. I think all takings i.e Eminent Domain are generally against the little guy in terms of compensation(mitigation).

So please correct me if I am wrong: I understand that eminent domain taking compensation is on Present Value as opposed to Future Value! i believe it should be on FV. Correct me if I am wrong.

Lets be more specific. Should we rule out takings for road widening. Zoning Changes, etc or should we stay with all takings. Pitt Pete said recently a Zoning change is in effect a De Facto Taking. I see his point. I recently attended a Zoning change Hearing that involved my Brothers Home Site. Adjacent land owner requested a change from Residential to Commercial C-3 (most liberal use of a site). Trust me when I say that the Zoning Change process is patently(in my Hood) unfair to the Existing Land owners.

 

[Gobears81]

eminent domain taking compensation is on Present Value as opposed to Future Value! i believe it should be on FV. Correct me if I am wrong.

Market value is based on the present value of future benefits. That is most easily correlated by income-producing properties, but can be inferred to the intangible benefits for owner-occupied properties. So from that perspective, eminent domain compensation would not differ from normal market value considerations.

Lets be more specific. Should we rule out takings for road widening. Zoning Changes, etc or should we stay with all takings. Pitt Pete said recently a Zoning change is in effect a De Facto Taking. I see his point. I recently attended a Zoning change Hearing that involved my Brothers Home Site. Adjacent land owner requested a change from Residential to Commercial C-3 (most liberal use of a site). Trust me when I say that the Zoning Change process is patently(in my Hood) unfair to the Existing Land owners.

Yellow Book has a number of requirements on when an appraiser could or should analyze a property based on a different zoning classification than what it is, but it can be considered in eminent domain. In my market, most municipalities are starved for tax dollars and typically quite lenient in the re-zoning process as they are overly excited for the potential of new development. As a result, there is often not as significant of a discrepancy in price for differences in zoning as other locations where the re-zoning process tends to be more rigorous. Nonetheless, that should be factored into the highest and best use analysis for this type of situation.