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Hypothetical

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Murphy
(@murphy)
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Mark Mayer has the answer I'd run with. It provides a reasonable justification for solving a problem instead of turning neighbors against one another. This reminds me that I haven't reread Cooley yet this year.

Locate the maintained limits and label it as an access easement.

 

 
Posted : August 8, 2022 3:26 am
Lurker
(@lurker)
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@murphy What gives the surveyor justification to label this area as an access easement? Are you suggesting prescriptive rights have created this easement? The surveyor doesn't have the authority to create an easement where one does not already exist.

 
Posted : August 8, 2022 5:11 am
NotSoMuch, JPH, NotSoMuch and 3 people reacted
JPH
 JPH
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@dave-karoly 

I agree.  The platted easement no longer exists when Brown owns both lots.  Then when Brown sells to Smith, the access to Lot 4 exists on the ground, and if nothing is stated in the deed, it's probably an implied easement, regardless of what the original subdivision plan indicates.

That said, it's a legal issue, not a survey issue at that point.

 
Posted : August 8, 2022 5:17 am

Dave Karoly
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@lurker it’s not a prescriptive easement.

It is likely another type of undocumented easement called an implied easement. It arises from the Deed transaction between Jones and Smith.

 
Posted : August 8, 2022 6:27 am
Jitterboogie, NotSoMuch, Lurker and 6 people reacted
Andy J
(@andy-j)
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Given the notes on the plat contradict each other, I agree, it's a legal issue, not a survey one.   If Lot 4 could never impact the "NBA" that covers it's portion of the cul-de-sac, how could it have access?  Also, how did the building permits get approved without the roadway as required in the fire marshall's notes?  

 
Posted : August 8, 2022 6:50 am
Jitterboogie, RADAR, Jitterboogie and 3 people reacted
RADAR
(@dougie)
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@dave-karoly 

In my hypothetical scenario; there wasn't a transaction between Smith and Jones. Brown deeded lot 4 to Smith, a year later, he deeded lot 3 to Jones.

Jones waited 3 years to throw up a red flag...

@murphy

As surveyors, we are tasked with finding the facts:

  • In the beginning, Brown owns both properties and can provide access however he wants
  • The platted subdivision indicates that the only access to lot 4 is through a private easement from the county right-of-way, then along the south line of lot 3, through another private easement.

It will be up to the current property owners to to decide if it is a problem. After all, Jones lived there for 3 years before he decided if he should even look into it.

You can't get in a time machine and go back and fix it; you can't look into a crystal ball and see what will transpire; the only thing you can do is add up the expenses, for each scenario, and see which one will cost the least; so they'll probably do nothing...

Jones bought it as is; why wouldn't the next Rube?


GIF
 
Posted : August 8, 2022 7:00 am

RADAR
(@dougie)
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@andy-j 

Good points Andy!

The Attorney's should have a field day with this!

 
Posted : August 8, 2022 7:04 am
Gene Kooper
(@gene-kooper)
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If this situation occurred in Colorado, the implied easement would be an easement by implication from prior use.

 
Posted : August 8, 2022 7:05 am
NotSoMuch, Jitterboogie, NotSoMuch and 3 people reacted
RADAR
(@dougie)
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@gene-kooper 

In Colorado, could you make that determination as a Surveyor?

 
Posted : August 8, 2022 7:07 am

Gene Kooper
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@dougie I am required to show all rights-of-way and easements (both express and implied) on my survey plat unless the property owner explicitly requests that I not show them. In this case I would survey the location of the road, but I would not label it as an implied easement by prior use. My narrative would include the facts that you listed in your OP.

 
Posted : August 8, 2022 7:21 am
NotSoMuch, Jitterboogie, RADAR and 6 people reacted
Duane Frymire
(@duane-frymire)
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why couldn't a surveyor give their professional opinion that it's an implied easement?  Don't we do that with the boundary itself? Surveyor's opinion is evidence, not proof or guarantee.

 
Posted : August 8, 2022 7:22 am
Jp7191, Murphy, NotSoMuch and 9 people reacted
Rover83
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In this sort of situation, I would say that a survey isn't going to tell them anything that they shouldn't already know. When the lots were purchased, if the purchasers had any sort of title insurance at all they would have had access to a copy of the short plat.

They also would have seen the drive/access between lots 3 & 4 during the purchase process.

It doesn't take much to put two and two together and realize that the physical driveway is outside of the easement. Caveat emptor, as has already been said upthread. This wasn't a hidden issue, it was right in front of them the whole time.

Posted by: @dougie

It will be up to the current property owners to to decide if it is a problem.

That's pretty much my view. So will a survey help them? Maybe, but I doubt it will hurt. Having all the facts is generally a good thing.

Posted by: @dougie

Jones bought it as is; why wouldn't the next Rube?

Exactly. Having a survey done doesn't prevent them from selling that property "as-is" in the future.

 
Posted : August 8, 2022 7:31 am
NotSoMuch, Jitterboogie, NotSoMuch and 3 people reacted

RADAR
(@dougie)
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@duane-frymire 

We don't know what the implications are; just that it's there. The Attorney's are the one's with the crystal balls...


GIF
 
Posted : August 8, 2022 7:31 am
Gene Kooper
(@gene-kooper)
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As a follow-up to easements by prior usage, back in 2019 I posted on the Colorado Court of Appeals case, Proper v. Greager (827 P.2d 591 1992)

 
Posted : August 8, 2022 7:46 am
NotSoMuch, Dave Karoly, Jitterboogie and 6 people reacted
Duane Frymire
(@duane-frymire)
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@dougie I don't know. Attorneys argue for legal outcomes that benefit their clients.  Surveyor's generally give an non-biased opinion of the legal outcome.  I haven't ever had a judge reprimand me for giving an opinion on adverse possession or easement issues.  They are very interested in hearing from the surveyor on those issues.  Surveyor's are trying to use the crystal ball more so than attorneys. Attorneys just want to win, even if they're wrong.

think of it this way. If you're the judge you have been an attorney.  You know each side attorney is presenting law in such a way to win for their client.  You don't know who is correct, and you don't want to be overturned (never get promoted that way).  So you're looking for a non-biased opinion also.  Helps to inform your clerk's in their research and inform your final opinion.  Separate the wheat from the chaff. A good attorney can argue just about anything on the facts presented. 

 
Posted : August 8, 2022 7:50 am
Jp7191, Lurker, RADAR and 6 people reacted

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