partial ownership rights

[goodgps]

I have a situation where a parcel map was created and easements for access and utilities were dedicated by the owners as being for "the benefit of all parcels shown on this map."

So now the owner of the northwesterly parcel, does a lot line adjustment with a neighbor which is outside the said parcel map development. He sells half of his lot to that neighbor.
The portion of that "half" does not touch nor is even close to the utility easement or the access road.

Now the neighbor who bought the "half" is claiming rights to the road AND the utility easement and demanding that utilities be brought thru the sellers half to his half. He is claiming that he has rights of enjoyment to utilities because the map clearly states "for the benefit of all the parcel shown" . . . and he now owns half of one of those parcels.

My client doesn't want to grant him an easement thru his half.
Also, the neighbor, has full access to all of his property from another public road, and can bring utilities to his property via that route, however, the distance is shorter if he goes thru the sellers property.

Does this guy really have rights to the utility easement ? and can he force an additional easement on the seller ? also, does he have rights to the access road ? if so, what for ?

"Perplexed"

[7702]

It sounds like the neighbor might be trying to take advantage of your client.

However, before we round up a posse and a rope, is it possible that the adjoiner's intentions were disclosed to your client prior to the LLA being finalized, but not properly documented? Is it likely that the adjoiner would have reasonably expected rights to use the existing improvements in the subdivision?

[dmi]

I am not sure how a surveyor can help out with this. I think I would steer clear. But while we are on the subject. It is what is known as "way of necessity" . A grant of an easement has a limit put on it by the terms of the grant and the enjoyment of that easement. Basically, access easments and utility easements for the development of a four lot parcel are for the benefit of the lots of the subdivision. When the easements are granted and used by the owners this of this subdivision, the grant is defined and it is unusal for the easements to exctend to property beyond the limits of the original subdivision without affirmative action on the part of the owners of the subdivision.

my invoice is in the mail.

[E_Page]

An LLA is for the purposes of moving an existing boundary, not creating a new boundary. The land which was a portion of the parcel of the subdivision is no longer a portion of the subdivision.

What the neighbor is claiming would constitute an illegal subdivision. An LLA cannot create or attach a 5th parcel subject to or making the easements appurtenant to it.

Unless there is language within the LLA or some other recorded document granting those easements, or indicating the intent to grant easements upon completion of the LLA, the LLA does not convey any right to those easements.

Unless the easements of the PM were dedicated to the public, Dane is correct, the easements would be held in common among all the owners within the PM and granting any rights to those easements to the neighbor would have required it be done by all parties with existing rights to those easements, or at least by those whose parcels are crossed by the easements.

As far as a way of necessity, if the neighbor's parcel already had access by another route, even if less convenient, they would have no need to go through your client's property. If through your client's property and through the PM is the only viable route, then the neighbor may be able to obtain an easement by necessity. But that is outside of the surveyor's authority to determine.

If I were your client, I'd tell the neighbor that he is out of luck, or perhaps that your client might consider selling him an easement (with the consent and collaboration of the other owners within the PM). In the meantime, the owner should line up a good attorney, just in case the neighbor wants to push the issue.

[dmi]

In my post I am covering different issues. I realize it may be difficult to follow. "Way of necessity" is what is going to be claimed by the party wanting easement rights to those of parcel map subdivision to extend to the newly created parcel. Lot line adjustments can occur between legally existing parcels. In most cases, legal parcels have all the typical qualities in common, such as access for ingress and egress, access to ultilities along with other appurtenances that would allow for the parcel to be enjoyed in a similar fashion as the surrounding parcels.

Public dedications for the specific purpose of allowing the small subdivision to be created and exist because the development can now be compliant,ought not be contrued as CARTE BLANC for the public to over-burden these dedications, by large and small scale development beyond the boundary of the subject small development.

Large land development firms are wrangling all the time for the least expensive
method to obtain public and private easements. Cutting through some smaller subdivision, has been allowed, but mainly the larger development is on their own to find access that does not disrupt the smaller subdivision by over-burdening their easements. While, It appears that I am in disagreement with Evan on this point I am in the main in agreement. I am pointing out ,what my experience of local agency rationae has been with respect to extending easements from one subdivision to another. There is a difference between Public and Private easements and on that point I fully concurr.

While we may be knowledge about these issues, they are not land surveying issues and are best left to other professionals.

[Surveyor826]

Exactly what I would have said if I had been born smarter.

[E_Page]

We, as Professional Land Surveyors, are not precluded from offering an opinion on this type of scenario based upon the records. We may interpret law as it pertains to boundary, and even title issues (if knowledgeable in that area) and formulate opinions based upon our knowledge of the facts and the law. We do this each time we stake and/or map a boundary. Something like this may be beyond the minimal competence level we need to pass the exam, but it's not completely out of our league.

The limiting factor is one's personal expertise in that facet of land surveying (don't practice outside your area of competence).

As a surveyor, you can opine 1) An LLA does not create easements, 2) The fact that land once a part of a parcel of a PM is now part of a parcel outside the PM by virtue of moving an existing boundary does not carry rights from that PM to the adjoining parcel gaining said land, 3) Generally, not counting prescriptive rights, easements must be specifically granted, 4) There may, in specific circumstances, be an operation of law which may override the general principles.

That last point does not negate your ability as a Professional Land Surveyor from offering an opinion on the 1st 3 points (and there are undoubtedly several others a PLS is qualified to opine on, but this is off the top of my head).

The knowledgeable and responsible PLS should educate his client as to the general operations of the laws and principles we should all be aware of, but also offer the caveat in a situation like this (where there could possibly be more info than has been offered or is available to us) that there may be some odd fact that could cause an operation of law which we may not be familiar with that could validate the claimed right.

That's not punting to the attorney. That's carrying the ball as far as we are able to, as a PLS, and then handing it off to the player who can take it the rest of the way.

That handoff probably takes place at the point where the client needs an advocate (atty) to take over, where an investigator (PLS) was what was needed up to that point.


826,

Even a blind squirrel...

I'm going to eat my acorn now then stumble off to bed.

[goodgps]

Well put everybody. I realize that while we "gather" all sorts of remedies and ancedotes by osmosis, during our careers, (about all sorts of stuff) we are not Judges or Lawyers or ranchers or carpenters etc.
HOWEVER, after refering Client to attorney, the attorney is asking me the very same question I posed in the beginning. ???
I like Evan the Terribles point, whereby the adjusted piece of land is no longer a part of the original development, but rather, is merged with lands outside the "ZONE"
This may not always be the case, but I think it works in this circumstance.

One ancedote I just witnessed yesterday, was the disagreement of a fenceline. The fence is a foot "over-the-line" The old owner wants his NEW neighbor, to Move the fence to the correct position.

After a bit of thought, the New guy says "NO, It's NOT My fence, it's yours. . . so you move it !"

So its all a matter of perspective. Don't catch a hot potato if you dont have to. 8^)

Good

[dmi]

I CAN GIVE MY PROFESSIONAL OPINION AS TO THE LOCATION OF A PARTICULAR LINE, BUT BY LAW CAN I OFFER AN EXPERT OPINION AS TO THE TOTALITY OF RIGHTS THAT ATTACH TO THAT LOCATION....?
I DO NOT BELIEVE THIS HAS ANYTHING TO DO WITH PRACTICE WITHIN AN AREA OF COMPETANCE, BUT RATHER HAS TO DO WITH PRACTICING WITHIN THE RECOGNIZED BOUNDS OF A PARTICULAR PROFESSION. A HEART SURGEON IS NOT QUALIFIED TO WRITE YOUR WILL FOR YOU.....!

[E_Page]

How's the blood pressure, Dane?

Did I say anything about opining on the "totality" of rights?

As a surveyor, you can opine on the basic leagal principles involved that the mere fact that a boundary line was moved and now happens to encompass lands which formerly were part of a lot of a PM does not bestow the same rights of the lots of the PM on the outside parcel gaining some of the land.

Please read the entire post prior to screaming your reply.

[Peter Ehlert]

Agreed Evan.
The skills and knowledge of an individual are unique to that person. Some are capable, some are not.

[dmi]

I wonder if some folks NEVER misunderstand what they read? I certainly did not mean to scream. And I certainly make plenty of mistakes.

Good has posted an interesting topic and I look forward to see how it all works out. This is the type of scenario that could wind up in court.

Thanks for sharing that

[E_Page]

OK! SORRY FOR THE MISINTERPRETATION!

;-)

[Ian Wilson]

Anyone familiar with "Drafting Case"?

That's where you're in the middle of a CADD project and you jump on line while waiting for a plot to clear the queue without turning off the Caps Lock.

I knwo I'm guilty of it... hee heeee

[Peter Ehlert]

yes, Ian, I always did think those drawings in ALL CAPS were rather quaint.

[goodgps]

Ok Dane, no reason to SHOUT he he he

Well, the easement stays where it is, and serves to its point of terminous.
No new easements were awarded to the purchaser of a "portion" of the parcel.

The arbitrator did recognize that "if" the lot line adjustment had caused a land locked situation there would certainly be cause for the seller to provide access to such a parcel. HOWEVER in this case, there is adequate access.
Case closed, no shots fired, "good" guys win again !

"good"