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Recognizing an implicit easement

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jdsimmons
(@jdsimmons)
10+ posts Member

Good Morning and thanks in advance for any comments or suggestions. 

We own a parcel of land in Arizona.   The parcel is home to eight trailer spaces six of which access their front doors, carports, their space in general from a public road.  Half of our parcel has a privately owned tract, not big enough to build any substantial structure, wedged in between four of our trailer spaces and the public road.  The tract in question was recently noted on a 2009 Plat Map and survey done as part of a redevelopment project which did not include our parcel.  The 2009 plat dedications say it is to be used for utilities, parking, trash collection and landscaping.  My family and our respective tenants have been crossing over the tract with our cars, boat trailers, parking on it, kids playing on it etc since 1978.  This pattern of use was occurring even before we bought the parcel. We essentially did not know the tract existed at the time we purchased our parcel in 1978, and I question if it actually did- in other words was actually officially recorded as a seperate tract.  I think it was part of the larger private development (i.e, not separated out) but now know due to the 2009 plat, and the fact that the 'climate' down there has gone from friendly vacationers and permanent residents (mostly retirees) to one of a land grab with people (mostly small time california developers and people with money trying to grab a piece of the action.  We are concerned that tract H whcih was conveyed to a private company will try to physically and legally block our access.  I am 90% sure we have a prescriptive easement but my question is this. 

Did the surveyor violate any laws or our rights by not recognizing our 'implicit', if you want to call it that easement? 

The use is open, hostile and has been for 50 years plus.  The need for the easement is obvious because of the cars, trailers and residences, power lines etc. It seems to me a gross oversight on their part.  Also, the reason they dedicated it to the developer and dedicated it for parking, was twofold.  1.) The developement plan required additional parking to get there plan through the county even though they (owner/developer never used it for parking purposes and 2). The surveyor/civil engineer had business relationship with the owner going beyond just providing civil engineering and surveying services.....he was quietly being given the lots, building the homes, then when they sold, paying off the owner for the lot so he had a lot of incentive to claim that tract the exclusive property of the developer, dedicate it for parking, and, ignore the fact that we had an need for easement there, even if not officially recorded .

 

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Topic starter Posted : January 19, 2022 9:00 am
MightyMoe
(@mightymoe)
5,000+ posts Supporter

To answer any question, the 2009 survey would need to be shown.

 

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Posted : January 19, 2022 9:30 am
holy cow
(@holy-cow)
10,000+ posts Member

Search for a competent real estate attorney.  That is, one who works routinely with real estate cases of a wide variety.  Do not tell them anything specific  when making contact, have them engaged prior to sharing all you know.  There may be various approaches that are applicable.  Saying too much may create certain problems you will not understand until the attorney explains them to you.  Lay out "what ifs" rather than making hard statements at first.

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Posted : January 19, 2022 10:34 am

FairbanksLS
(@fairbanksls)
500+ posts Member

I'd continue using it just like it was 2009. Let a sleeping dog lie unless you feel like spending lots of money on attorney and surveying fees

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Posted : January 19, 2022 12:11 pm
JPH
 JPH
(@jph)
1,000+ posts Member

I don't know if anything is implicit?  You have frontage and access on another road.

You may have a prescriptive easement, or even acquired title through adverse possession.  Or you may have nothing. 

As others have said, you should probably hire a lawyer if you're concerned about it.

I can't blame the surveyor for anything, if it's a mostly vacant parcel.  How would he know who may've been using it, or for how long?  It apparently isn't deeded to you, and someone else holds the title, by deed or some other manner.   Which is probably why it's shown as such on the 2009 plan.

 

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Posted : January 19, 2022 1:00 pm
jdsimmons
(@jdsimmons)
10+ posts Member

Mighty moe. thanks for the response.  See attached.  The dedications are on the left side middle of attachement.  The plat is attached. that is our parcel in the middle with the new apn on a sticky note.  

 

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Topic starter Posted : January 19, 2022 1:28 pm

jdsimmons
(@jdsimmons)
10+ posts Member

@holy-cow 

This is very sound advice.  Sounds like you have dealt with this kind of issue before. 

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Topic starter Posted : January 19, 2022 1:29 pm
Lurker
(@lurker)
200+ posts Member

You mention a gross oversight on their part. I think the gross oversight occurred when you purchased your parcel without finding out what you were actually purchasing. While you may be entitled to some type of continuing use of the tract H, it is not someone else's fault for your lack of awareness.

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Posted : January 19, 2022 1:39 pm
Chris Bouffard, Bradl, FairbanksLS and 1 people liked
jdsimmons
(@jdsimmons)
10+ posts Member

@jph 

thanks for the response.  you said, I can't blame the surveyor for anything, if it's a mostly vacant parcel.  How would he know who may've been using it, or for how long?  It apparently isn't deeded to you, and someone else holds the title, by deed or some other manner.   Which is probably why it's shown as such on the 2009 plan. 

Surveyor's responsibilites, legalities, deed etc. all that aside, and  because I know enough about what the surveyor knows about who comes and goes and where down there, his role in the development etc. and because its quite obvious there is a required access there for four of the spaces given the current layout of the trailer park,  I don't buy in to "how is he supposed to know".  Of course he knew it was being used as described.  And, its self-evident.  And the fact that is so self evident and has been for so long, means that in all likelihood we have an easement.  But my questions  is does a surveyor have responsibility to point out such.... and it sounds like your answer is no.  Correct?    There is access on other frontages to the parcel , but only for a portion of the park as it is currently layed- out. Four or so of the trailer spaces are only accessible (vehicles).  via Osprey Point Rd. Just FYI - there is a block wall and private property on much of the rear. pedestrian easement.  Only four spaces (5,6,7,8) are accessible from other frontages.  I think the plat map I attached will help shed light.   Perhaps the question then is-    given its a single parcel, but one divided into 8 functional spaces that are leased, do those functional eight spaces hold sway over the parcel in terms of how access, or lack thereof, is viewed and determined legally. 

Maybe someone familiar with trailer parks can shed light.    Again, appreciate you comments JPH  

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Topic starter Posted : January 19, 2022 1:54 pm

jdsimmons
(@jdsimmons)
10+ posts Member

@lurker 

Agreed. However if Tract H was not designated at the time of purchase, your comment is misdirected.  

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Topic starter Posted : January 19, 2022 1:55 pm
jdsimmons
(@jdsimmons)
10+ posts Member

Funny thing too that previous parcel maps, for example the one that would show our old APN seem to be unavailable.  Maybe someone could tell me how to get those. I have tried online and in person at the County accessors office and all they seem to say is this is the current plat map and that area is such a mess.   

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Topic starter Posted : January 19, 2022 1:57 pm
jdsimmons
(@jdsimmons)
10+ posts Member

@fairbanksls said I'd continue using it just like it was 2009. Let a sleeping dog lie unless you feel like spending lots of money on attorney and surveying fees

I agree however we are not in a position to let sleeping dogs die as we are not dealing with sleeping dogs.   We tried to purchase the tract and they quoted an astronomical price IMO- between 30-60K and in the same sentence also said but its not for sale as we have other plans for it. Plans? I think its a bluff to get the price offer up.  Bluffing dogs yes,,,,but not sleeping dogs:) 

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Topic starter Posted : January 19, 2022 2:04 pm

jdsimmons
(@jdsimmons)
10+ posts Member

I should say 'perhaps' not affirmative 'yes'.  😆 

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Topic starter Posted : January 19, 2022 2:05 pm
Williwaw
(@williwaw)
1,000+ posts Member

Seems a legal question and maybe someone here is licensed to practice law in your state by I'm not. my understanding is the fundamental issue with any prescriptive easement or AP claim is that until you have a legal decision in your state's court of law, it's just a claim. Unwritten rights may technically ripen when all of the legal requirements have been met, however without a court's decision you have nothing legally enforceable. So the short answer to your question is no, the surveyor most likely did not violate anyone's rights by not implying or inferring an interest in a third party's property. In fact I believe he would likely assume quite some liability on several levels in making any such claim as he is not licensed to practice law or act as a judge. Good luck!

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Posted : January 19, 2022 2:14 pm
Peter Lothian, JPH, Andy J and 1 people liked
Andy J
(@andy-j)
1,000+ posts Member

Sounds to me like you've already got it all figured out!    No need to ask for assistance.   Good luck.

 

PS... Is 2009 Recent?   

This post was modified 4 months ago by Andy J
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Posted : January 19, 2022 3:03 pm
Dave Karoly, JPH and RADAR liked

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