Legal Descriptions Non-Record Basis

[marois]

I routinely review legal descriptions and plats for a local water district for proposed easements it will be granted for development. Below is an example of one that was submitted, the map has not recorded that is why the book and page numbers have been left blank. My initial comment was to have the surveyor prepare metes and bounds descriptions based on recorded information. Wattles talks about avoiding “quasi-public records” for a basis of descriptions, but I haven’t been able to find a requirement that prevents referencing a non-record document and/or map. Any thoughts or information would be appreciated. It should be noted that the surveyor is pushing back on providing metes and bounds.
Armand Marois

“An easement for sewer, water, vehicular and pedestrian ingress and egress purposes over Lots “A”, “B”, “C”, “D” and “M” through “S”, inclusive, of Tract No. 12345, as recorded in Book ________, pages ____ - _____, inclusive of Maps in the office of the County Recorder of Some County, State of California”

[Warren Smith]

Armand,

This appears to be an instrument prepared to fulfill a condition of approval for the subdivision. The interest over the lots depicted on the final map cannot be accepted by the approving agency on behalf of the water district, so this is the solution. If the City Surveyor/Engineer is willing to sign the "this map conforms with the approved tentative map" statement on the map, with a separate, executed grant of easement showing the blank Book and Page, to be filled in concurrently with the map being filed with the Recorder, that is an acceptable procedure. SMA section 66468.1 provides for that.

The example you show indicates use other than just water (line?) purposes. Those appear to be capable of being offered by the subdivider and accepted by the local agency on the map, hence the showing of separate, lettered lots.

Alternatively, the areas delineated on the map could be described by metes and bounds ahead of recordation, an existing easement for water purposes shown on the map, and a signature omission listed. This seems cumbersome for a non-exclusive easement.

There is also the specter of the fee title of these lettered lots remaining with the subdivider, subject to the specified easements. Vehicular and pedestrian ingress and egress sounds just short of a full blown public right of way. To the extent there are public utilities franchise agreements with this public agency, their right to place facilities may not attach. Rather than an encroachment permit, it likely will require a mutual use agreement.

Sorry to ramble on, but these considerations may be why you are getting push back.

[edit - I should point out that the Water District will need to execute an acceptance of the grant, to be attached]

[marois]

Thanks Warren, extremely helpful information. Most of the time the district has been requiring the grant deeds to be recorded prior to the map.
Armand Marois

[dedkad]

If the district requires the grant deed to be recorded prior to the map, then I don't see how you can record an easement with reference to a map that doesn't exist. You can't go back in and fill in blanks later on an already recorded document unless you file an amendment, but I doubt the Recorder would even allow the blanks to be recorded to begin with.

I've never had to coordinate with a water district, so I don't know how this all works. If the easement is shown on the map, does the owner offer it to the water district in the owner's statement and does the water district have its own signature block on the map accepting the easement?

[Chiara]

Armand,

I can empathize with the surveyor you're experiencing 'push back' from. I'm speculating the reason why he isn't cooperative is he's already granting public water easements on his map over the area the water district is asserting they need an easement by separate instrument. Assuming proper agreements are in place between the jurisdiction accepting the easements and the water district, why is a separate easement necessary? This was touched on by Warren. An extension of the logic being applied would mean that a PUE accepted on the map would still require separate easement deeds to PG&E, the Sewer District, any separate utilities such as Comcast, & etc.

On your questing regarding the appropriateness of citing the lots, I sometimes get requests for a description while a subdivision is in process and whether to reference the new lots is entirely dependent on the timing of the description. If it'll be used before the map then the lots can't be referenced. If it'll be after then the lots can. When faced with "I don't know" from the requester, I prefer to write a description that assumes the map has been filed. It often simplifies the description.

Michael

[Anthony Maffia]

The title company working with the city should be able to file the map, fill in the recording data by hand into the legal description and immediately record the easement. I've done it that way and seen other maps done the same.

I've also had a water district accept the offer of the easements at a regular board meeting after the map files, and then file their acceptance.

[Dave Karoly, PLS]

A description only has to be locatable but obviously using a non-record tie is not the best practice. The Courts will give effect to a Deed if at all possible, preferring to go to great lengths to avoid void deeds.

[dedkad]

I've also had a water district accept the offer of the easements at a regular board meeting after the map files, and then file their acceptance.

So on the map the Owner offers the water easements to the Water District and it is then followed up by Water District with a recorded acceptance? That certainly seems easier than writing a whole separate deed and legal description.

[dedkad]

I can empathize with the surveyor you're experiencing 'push back' from. I'm speculating the reason why he isn't cooperative is he's already granting public water easements on his map over the area the water district is asserting they need an easement by separate instrument. Assuming proper agreements are in place between the jurisdiction accepting the easements and the water district, why is a separate easement necessary? This was touched on by Warren. An extension of the logic being applied would mean that a PUE accepted on the map would still require separate easement deeds to PG&E, the Sewer District, any separate utilities such as Comcast, & etc.

There are some schools of thought that a telephone company or cable company are not officially "public utilities." I worked in one jurisdiction where the phone company would indeed follow up every PUE offer on the map with it's own easement for their facilities.

[Warren Smith]

Water districts are special districts, with Boards of Directors, regulated under the Utilities Code, just like the gas and electric companies, telephone and cable TV companies and others who are subject to stockholders and the payment of dividends, unlike public agencies. The local agency, in approving the map cannot accept offers of dedication for purposes other than those which fall within its budgetary purview. Examples are enterprise funds such as sewer collection and treatment, storm drainage facilities, landscape maintenance districts, and water service. If the local agency is not the water purveyor, those easements must be accepted pursuant to resolution of the appropriate board of directors. The County Recorder will also require that acceptance to be attached to the grant of easement.

We deal with these a lot in subdivisions around here. If the easements are not wholly within a lettered lot on a map, then metes-and-bounds descriptions are appropriate and can be recorded ahead of the map. Where, as here, other utilities will share the space pursuant to the approved tentative map, reference to those lots is the preferred method. We concurrently record multiple documents, such as Notices of Minor (or Major) Subdivision Restriction, and the Recorder will fill in the blank Book and Page.