The “Right” Right of Way

by Jerry Moran on March 11, 2010

We in the right-of-way profession deal with many issues that sur­round our specialty. We talk about appraisals, relocation, property management, leas­ing, and more. There is very little de­voted to the issue of the lowly easement and the rights we acquire from private property owners and franchise rights from governmental agencies. I am going to address these topics from the utilities viewpoint. I suppose we could also call this a right of way agent’s primer.

What exactly is the right right of way?

  1. It is the correct easement form, properly executed and notarized by all of the legal owners of interest in the property?
  2. The description of the property on the easement form is exactly as that de­scribed in the deed.
  3. The location of the easement on the property is adequately described and leaves no room for interpretation by others.
  4. The grantors of the easement were fully informed of what would be placed within its boundaries.
  5. The easement is not a blanket ease­ment. A blanket easement allows the easement holder to place their facilities anyplace on the property they wish.
  6. The easement is properly recorded in the recorder’s/registrar’s office in the county/parish in which the prop­erty is located.
  7. Your plant is installed within the boundaries of the easement.

Let’s address each one of the above items and see what they really mean.

  • Legal Owners
  • How do you know who has an inter­est in the property? Some might think that it is a simple matter of checking the deed or the tax assessor’s records. This couldn’t be farther from the truth.
  • Here are some reasons why:
  • Deeds do not have to be recorded until the current owner(s) sell the prop­erty.
  • Other transactions could have oc­curred after the current deed was recorded.
  • There could be a contract for deed in motion and not recorded. Some juris­dictions, not all, require that the con­tract be recorded.
  • If the property is leased when you ac­quire your easement, the lessee can keep you from exercising your ease­ment rights under some circumstances if the lessee doesn’t sign a release.
  • If there is a life estate on the property, do you know who must sign the ease­ment?
  • The tax records are always a good place to start looking for ownership; however, that is all that they can really be used for. In most jurisdictions the party paying the taxes is the name that appears in the records. It is not neces­sarily the owner(s) name that appears.
  • Is there one or more mortgages/trust deeds on the property? When do you take subordination from the lender(s)? Do you realize that without subordination, your easement could be made invalid if the lender takes the property back due to default by the property owner(s)? The lender has as much to say about the property as the current owner(s). Sometimes this infor­mation comes as a shock to some right of way practitioners.

Correct Property Description

The correct description of the piece of land that you want an easement on is critical. A land description is unique to:

• that particular parcel, to the exclusion of all other parcels of land in the world. An incorrect description may invali­date the easement taken.

The following are the most common ways to describe real property.

•    Metes and Bounds (measurements and boundaries)

•    The rectangular method (section, township and range)

•    Subdivision (lot and sometimes block)

•    Using the State Plane Coordinate Grid System

 

Location of the Easement

  • The easement may be described in many different ways. The most com­mon is metes and bounds, which re­quires a survey.
  • Next is a sin­gle, two- or three-way call, which may sometimes be accomplished without a survey if the property boundaries are clearly evident.
  • Sometimes an exhibit “A” is used, which is just a pictorial of the area encumbered.

Owner(s) Fully Informed

We have all experienced “buyers re­morse” at one time or another. Imagine how a property owner feels after he or she has granted an easement to the local utility for a buried line and one small above ground device. On the day of construction the owner is confronted with the largest Caterpillar tractor made instead of a light duty Ditchwitch trencher, and a crane lowers a huge manhole into place instead of the small device. The easement document may allow for such equipment, but imagine how the property owner feels. This can happen, and if it does, someone’s tele­phone is going to start ringing at the utility.

 

Handling Trespass Complaints

Frequently an attorney is con­sulted—which can be very expensive (even in-house attorneys cross charge the expense to your department in most companies now)—on right-of-way matters when it could easily have beentaken care of by someone properly trained in such matters. In fact, a frequent prob­lem for many utilities is the following sce­nario:

A property owner calls to complain about a pole on their property that they never saw before. They are absentee own­ers and recently decided to build their re­tirement home on the property. They can’t find anything in their title report or deed that indicates that your utility has any rights to be there. What are your options?

Try to find some sort of easement or per­mit in your files. None can be found. Then you must weigh the cost of moving the plant versus hiring an attorney to defend your presence on the property. Without some documentation, the attorney is likely to say that it is very difficult to de­fend in court and what appears to be trespass.

Perhaps the pole was placed with verbal permission years ago. It probably was be­cause you know that your company has never trespassed. You do some investigat­ing and discover the pole was placed there 22 years ago, but the current owners bought the land six years ago. You won­der why they never noticed the pole be­fore. However, when they bought the property they really hadn’t thought about where they would ultimately build their home until now. The pole is in the middle of the proposed house, and they want you to remove it at your ex­pense.

You might consider an optional ap­proach. It doesn’t always work but it’s worth a try. There is something in the law called Laches. It means “failure to act within a reasonable period of time.” This can be interpreted to mean that the owner, upon purchase of the property, did not inquire as to the rights of the utility and therefore has given “tacit” permission to leave the pole there. Will it stand up in court? Not likely, but it has worked as a bluff on innumerable occasions.

Another tactic to use is “Prescriptive Rights.” Prescriptive rights can be in­voked if your plant is clearly visible (open and notorious), in continuous use for the statutory time (five to 30 years depending on which state you are in), under a claim of right, and it must be adverse to the property owner. The use of prescription is much stronger than laches because it is a real­istic possibility if it is taken to court and all of the conditions for obtaining a pre­scriptive easement have been met. The court can actually grant the easement. The exception to this is in New York State, where utilities are prohibited from exercising prescriptive rights.

Sometimes, the inclination is to just move your plant, at your company’s expense, without any fight or negotia­tion. It is more cost effective in the long run to have a staff or engineering per­son, well versed in right-of-way mat­ters, than it is to refer it to an attorney every time a question arises about ease­ments or rights of way.

Remember: when asking property owners for an easement, put yourself in their place. Would you grant the ease­ment if this were your property?

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