Flag Lot

[Mike Seward]

A friend purchased a 10 acre flag lot having 50' frontage on a public road. The plat map on public records shows the flag lot having the 50' frontage. The long legal description in public records describes a flag lot having the 50' frontage. The seller gave the buyer the original survey which matched public records. A new survey was not ordered. The sales contract specified the legal desc. in public records which showed the flag lot.

Apparently, 12 years ago, the seller sold the "pole portion" with the 50' frontage to someone and received a perpetual easement for ingress and egress to the property. This sale was a legitimate sale, but it never showed up in public records.

AFTER closing, the buyer realized the legal description in the closing documents he signed had a new legal description reflecting the sale 12 years ago. He just skimmed the legal at closing and missed the change. He called the title company and was told "don't blame us. You should have read the legal description more closely."

I'm an appraiser, not a lawyer, but I'm thinking that the seller did not deliver what the sales contract specified.

Assuming my friend is stuck with the property, my question is this: what rights are associated with ingress and egress? Can he convert the dirt road to asphalt? Can he run sewer lines, etc?

Any thoughts would be appreciated. Thanks in advance.

Mike Seward
Appraisal Alliance, Inc.

 

[Mark K]

How did the purchase agreement specify the property to be conveyed? Was there a complete legal desc. in the PA or did it say "see attached legal description or survey"? The property should have been legally identified in the PA. If the agreement said something like "10 acres, more or less located at about 1000 Smith Road" then your friend got involved in something that was out of his realm of expertise. I've seen PA's with descriptions that vague.

If the legal description in the purchase agreement didn't match the deed at closing, I'd say that there is a good basis for the purchaser claiming fraud in the deal. If there is a perpetual easement your friend should check to see if the lot is a conforming building lot since it doesn't have road frontage. Easement access often does not equal deeded frontage in the eyes of the local planning commission.

Additionally, he better check to see exactly what rights the easement gives him. The easement document should be recorded. If there is no recorded easement, the site may be landlocked.

It looks like your friend may want to get legal advise about possibly rescindiing the transaction if there was fraud involved.

 

[wyecoyote]

Mark wrote a pretty good explanation. I would first check with a lawyer. Additionally was the sale of the "pole" section recoreded? Sometimes he who gets to the recording office first wins. Biggest thing is your friend needs to talk to an attorney. Double check the legal on the PA and closing papers. Also take a look at the type of easment with a lawyer. The lawyer may find out that the easment is only an ingress egress easment. Lawyer will be able to tell one more I would sit down with a lawyer and find out for certain what one has. The pole sale 12 years ago may not actually affect the current 10 acres with regards to how the easment is written. I have seen some easments written that benifit more the other property than the property that has the easment over it.

 

[Walter Kirk]

Was the lot legally subdivided when the "pole" portion was sold? Does it have it's own lot number or was it joined to another parcel? I seriously doubt that the local government would allow a subdivision which would leave a parcel land locked even with an easement. Run, don't walk to a real estate attorney!!

 

[Pat Butler]

This could have been prevented. First, who doesn't get a NEW survey with a new transaction? Second, you mention an uncrecorded easement which in my state would be unenforcable. How is anyone supposed to know about it if unrecorded? Third, where was his attorney? Fourth, why didn't he read the legal description?

I'm confused as to why so many things were out of the ordinary with this transaction. His only recourse that I can see is if the seller provided that older survey which was suppose to be evidence of what he was buying. But then, the legal on the old survey would not have matched the legal on his deed. Wasn't that noticed either?

 

[Mike Garrett RAA]

Good advice, consult an attorney. In my state, a parcel cannot be sold if it is landlocked. The title commitment should have address this issue.

 

[Mike Seward]

Thanks for all the responses. My friend told me today that, in his county, when one sells part of a piece of property, one is legally required to go to the county and make a "cut out request", informing the county of the sale. This allows the county to levy taxes on the rightful owner AND to maintain accurate public records.

The seller didn't do this. This could be the smoking pistol. Next stop, lawyer.

Thanks again for your responses.

Mike, you have brown hair and are calling yourself really old. I am 58 with grey hair. I'm going to start calling myself ancient. <g>

 

[Mike Garrett RAA]

Well.....what can I say, I am 62!

 

[Otis Key]

Originally posted by Mike Garrett, RAA@Oct 26 2004, 05:52 PM
Well.....what can I say, I am 62!

Mike, you have brown hair and are calling yourself really old. I am 58 with grey hair. I'm going to start calling myself ancient.

Now I'm beginning to feel like a kid. :rainfro: :rainfro: :rainfro:

 

[Mike Seward]

Mike, I look older than you (Pam can attest to that).

That's it. I'm taking my toys and going home.