Land Locked

[Mike Garrett RAA]

It the Pikes Peak Cog Railroad after the EPA got through with them!

 

[jtrotta]

Just kinda breezed thru this and the answers so far; in the late 80's, early 90's we had a couple of major builders go under and one of em, who was involved "heavy" with some major Lenders (good ole boys club), lost a large track back to the Bank. This was in the early days of my working into the appraisal binez and I thought it would be a cool adventure. Needless to say, this parcel was "landlocked" and the loan on it was in excess of $2 Mil - for a new construction project that went nowhere.

Today, I believe there are laws that prevent that from happening again here in our state; I would suggest a look into your state Real Estate division/ Local Zoning & Building Regs. to see if their regulations have also been altered to prevent that type situation. IMHO - the banking industry would be behind the instigation of this rule, simply so they don't get burned again. 1 incident goes a long way and that was back in the early 90's - how many bank regulations have changed since then :question:

Oh, by the way - this is a complex project, be sure you git paid what it's worth B)

and good luck tp ya

h34r:

 

[xm39hnu]

Originally posted by Steven Santora@Aug 8 2003, 06:23 PM
Jim,
Apparently these statutes are more common than I thought. They provide the court an easy solution to a thorny problem, but they don't seem quite Constitutional. Problem is it cost to much to go to federal court and fight these little takes.
<snip>
Just wodnering, under these laws, who pays for the taking: the benefitting owner or the state. Also, the top post raised the issue that the "locking" goes back to 1880. A lot of these laws guranteeing access are more modern and went to preventing the creation of parcels without access. Is the law intended to be applied retrospectively. because that would again raise Constitutional question, ie ex post facto laws.

Steven,
In Tennessee, it's the petitioner who pays. It appears that you have to petition the court for an easement (need a lawyer to do that, so there's another expense). Petitioner pays the filing fee, and all court costs. Those costs will include the fees for a "jury of view," which is composed of five people selected by the parties jointly, or appointed by the court if the parties so request. The jury selects the route of the easement, and assigns a value to it. That value can include the worth of the easement itself, as well as damages to the larger parcel. Petitioner pays that value to the party across whose land the easement was taken. So it's the landlocked landowner who pays out the loot: attorney's fee, five experts' fees (including an appraiser and a surveyor, usually), court costs, easement value, and damages.

The text quoted below is from the reference cited in my previous post. It's somewhat enlightening, in a confusing sort of way:

..(discussion of eminent domain as it should be)..."However, recent trends indicate that the courts interpret public use quite liberally. Thus, takings for scenic easements, golf courses, and open space have been held to be for public use. In 1984 the U.S. Supreme Court use the public use requirement to uphold the Hawaiian Land Reform Act of 1967. Ninety-two percent of the privately owned land in Hawaii is owned by only 72 landowners. The state perceived this land oligopoly to be a social and economical [sic] evil and adopted the Hawaiian Land Reform Act, which allows lessees living on single-family lots in developments of at least five acres to ask the state to condemn the leased fee estate in the lot and resell it to the lessee. The constitutionality of the act was challenged in federal district court [Midkiff v. Tom, 483 F. Supp. 62 (Haw. 1979)] on the grounds that the taking was not for a public use. The district court found the act to be constitutional, but the federal 9th circuit court held that the act did not meet the public use requirements of the Fifth Amendment and characterized it as 'a naked attempt on the part of the State of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit.' [ibid., 788,798]

The Supreme Court overturned the 9th circuit [Hawaii housing Authority v. Midkiff, 467 U.S. 229, (1984)], finding that the act met the public use requirement of the Fifth Amendment of the U.S. Constitution because the state legislature determined that the act would serve a public purpose and 'deference [by the courts] to the legislature's "public use" determination is required 'until it is shown to involve an impossibility.' In support of its decision, the court said that 'the Act advances its purposes without the State's taking actual posession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking's purpose and not is mechanics, that mus pass scrutiny under the Public Use Clause.'" (emphasis added).

There. I hope that clears this up

I don't think ex post facto would apply. The law affects property rights as they existed at the time of its enactment. Just because the boundaries were established in antiquity doesn't make the law ex post facto. The state's saying, "Yesterday, you could deny him access. Today, you can't, 'cause we just changed the rules." Constitutional? If you've got enough political power, yes. Ex post facto would apply, for example, if a person were accused in Federal court of murdering a US President in 1950. In 1950, there was no federal law against assasinating of the president. It was enacted after Kennedy was shot in the '60's. So the present law could not reach an act committed in the fifties. The land boundaries are present today, as are the property rights. A law enacted today will reach those boundaries and rights just fine.

 

[Stone]

A couple of points: What would any easement legally allow? what would it physically allow? Without looking it up, I believe in Wisconsin that the most likely location for an easement on a landlocked tract, when the courts are involved, is across other lands to which it might have been historically attached. I don't recall where an easement would go if it wasn't split off an adjacent tract. The other point is what does the easement mean. Again, in Wisconsin, I believe the only access rights that would be enforceable would be walking rights. Landlocked tracts that gain access through this type of law do not automatically get to have automobile access, and thus continue to frequently have a highest and best use of recreational (hunting, fishing, camping, etc,) or as an addition to an adjoining owner's lands. There is a market for rural lands that only have walking access, depending on what type of land you are looking at.

Michael

 

[Fred]

From Jim

'a naked attempt on the part of the State of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit.'
it is only the taking's purpose and not is mechanics, that mus pass scrutiny under the Public Use Clause.'…There. I hope that clears this up

That was my point. These are takings for private gain not public good regardless of what they are called - and that they would not pass the test of Constitutionality. And not only that, you pulled out the same case citation that I would have pulled out.

Another thing I read into this Tennessee statute as explained is that there is no “rule” for this compensation.

The jury selects the route of the easement, and assigns a value to it. That value can include the worth of the easement itself, as well as damages to the larger parcel.

That sounds totally ad hoc. As I am sure you know, there are plenty of “formulas” that one can construct, some making more sense than others in terms of, say, the value of this, less the cost of that, etc. What if this jury wants to find “negative” damage meaning that the formerly landlocked owner should pay a portion of the value increase to the owner forced to surrender the easement. Juries are very prone to this type of ‘justice’ logic. From an appraiser’s standpoint, this could be great bonanza because you can offer to appraise and compare the relative merits of every possible scenario in order to aid the jury’s decision.

 

[xm39hnu]

From Steven:

These are takings for private gain not public good regardless of what they are called - and that they would not pass the test of Constitutionality.

The reason I cited that series of cases is to show that the issue has already passed the test of Constitutionality as far as the Supreme Court is concerned. Such cockeyed takings will continue until some of this insane garbage is dealt with. Other incompensable "takings" have to be dealt with as well, such as EPA declaring your bean field a wildlife refuge because some field mouse has taken up residence.

Another thing I read into this Tennessee statute as explained is that there is no “rule” for this compensation.

Oh, there are rules and guidelines. I just didn't detail them in the interest of brevity. Generally, they appear to follow the State rule (value plus damages; negative damages not permitted) for eminent domain takings, despite the fact that Tennessee is said to follow the Federal rule in Uniform Act condemnation. Go figure. And you're right about the potential for business. I'm told by more experienced appraisers (those who can get through Daubert) that it is not uncommon for an appraiser to be tapped to serve on this Jury of View, and to be paid accordingly (full fee plus court time). Same with surveyors. This is especially true if the issue is complex or there's a lot of money at stake.

The complexity of condemnation appraisal is the reason that I suggested that the original poster get help and charge a lot. I'm a relative newcomer to this profession, and I won't run from anything but a deadbeat AMC. Ask me for a retrospective estate appraisal of the partial interests of six heirs to one of HGTV's "Extreme Homes" which was leased out on a time-share basis to three celebrities, with a life estate reserved for four grandkids, and I'll say "Sure! But I'll have to get help to do this competently; don't have any experience with this type of property. I'll get back to you on the fee." Next step is to hire some appraisers who actually know how to do such a thing, and are geographically and subject-matter competent. I'll do a lot of legwork, a lot of writing, and a loooot of shoulder-surfing. May not contribute much to the appraisal except grunt labor, but I'll learn from it if I don't make a dime.

 

[jtrotta]

Don't know if this'll help any of you, but here it is State Law that access be gained, by whatever name you want to put on it-doesn't matter. We have pieces that go back to the 1600's - weird little area that I know of still retains "Rights Of Passage" over other peoples property to obtain "fresh water" and dates back to the 1700's - it can't be taken out of the Deed B) attorney's have tried and been blocked.

IMHO - different States will apply various laws to control this issue.

h34r:

 

[Terrel L. Shields]

"Alabama statute gives a landlocked owner of land located outside the city limits the right to secure an easment for ingress and egress across the lands of others. This easement may be no more than 30 feet in width and must be across land that offers the shortest and most direct route to a public road."

Arkansas and OK have similar laws. Technically, Arkansas will no longer honor legal descriptions that are landlocked unless it joins an adjoining landowner buying it. I learned some of that in surveying classes.

And...technically, an easement is not necessarily a "taking". Bundle of rights issue. Unless the right of engress and egress has been given up, a parcel should not become landlocked, i.e.- the last landowner with access should have given up the easement. You cannot buy a landlocked parcel with an intact bundle of rights by definition...but "Fee Simple" is usually conveyed.

In E. OK lots of old indian allotments are orphaned but untaxed and do not go back to the state. Finding the descendants can be a nightmare. I know of one ranch where 3 or 4 of these 10 ac. allotments had to be dealt with. Invariably they bring about 40-50% what adjacent property with access will bring whether sold to adjacent owners or others. I know one such parcel that a guy turned to the adjacent surrounding owner (only one) with a stipulation he could deer hunt on the tract for 10 years.

Another situation I recall was a road split 80 acres with the owners assuming it lay on the section line (actually the township line) and the wiggle in the road was assumed to be for correction between township tracts. In reality a 40-50' sliver of 40 ac. lay on the other side of the road. The estate split the tracts by standard SW of NE type description between two feuding sisters. One got the 40 w/sliver on other side of road, and the other the landlocked piece. Eventually, the sister with the landlocked piece sold off 20 acres and got it surveyed and that was when she found out her land was landlocked! The other sister held her feet to the fire for a 30' easement. Ironically, they originally were deeded the parcel exactly the opposite, but the sisters swapped properties when the one complained she had got the worst parcel....poetic justice, I suppose as there wasn't a nickel's worth of difference.

 

[xm39hnu]

Terrell Shields said...

And...technically, an easement is not necessarily a "taking". Bundle of rights issue. Unless the right of engress and egress has been given up, a parcel should not become landlocked, i.e.- the last landowner with access should have given up the easement. You cannot buy a landlocked parcel with an intact bundle of rights by definition...but "Fee Simple" is usually conveyed.

That's what I'm coming to love about this business: Nothing is ever really simple. We've got a disclaimer in our Assumptions and Limiting Conditions section which says that we assume that the property is owned in fee simple unless otherwise stated in the report. Now you've got me wondering whether that statment affords adequate CYA insulation for landlocked property. I don't think it does, without including a hypothetical condition.

Terrell, that very issue may be the reason that such laws haven't been declared unconstitutional. (Although the situation in Midkiff still ought to be, IMO). But what about the situation in which I sell off the 10 acres adjoining the road, retaining the balance of my land as landlocked? An attorney should catch it, but me and Roscoe just traded. He gave me a good team of mules and a moonshine still for that land, and Roscoe duly recorded the transaction. Haven't I voluntarily given up my right of access? If so, can I now force an easement?

Michael Stone raises the question of what rights are conveyed in the easement. I don't know. There's a maximum width which is enforced, but whether surface rights are conveyed without encumbrance is unclear. I know that you're given the right to travel across the easement, and I think that's all you get. You guys have raised some points that are going to send me back to the books again. Thank you!! I'd rather have such questions raised here than by a Plaintiff's attorney at deposition.

 

[Fred]

what rights are conveyed in the easement

That depends on the terms of the easement.

Jim, I don’t know what you mean by

Assumptions and Limiting Conditions section which says that we assume that the property is owned in fee simple unless otherwise stated in the report. Now you've got me wondering whether that statment affords adequate CYA insulation for landlocked property. I don't think it does, without including a hypothetical condition.

I guess the point at which your typical, canned Assumptions and Limiting Conditions are inadequate is the point at which they are not applicable to the atypical property appraised.

Problem may be rooted in vocabulary, too. Appraisers use the term “fee simple” synonymously with fee simple absolute, because the first one is a lot easier to say, but they don’t necessarily mean the same thing. Fee simple alone does not always distinguish fee simple absolute from fee simple conditional. You might just have to actually explain the property rights appraised (subject property) rather than use canned boilerplate written for cookie cutter appraisals.

BTW, if creating landlocked parcels is illegal, trading mules for access was legally void when it occurred, even if it was recorded.