# Ever hear of such a thing??



## cc-rider (Jul 29, 2003)

We are less than 10 days away from closing and still can't get a title that doesn't have an "exception" on the policy. There is an old Right-Of-Way for a pipeline that was put on when the property was one big 500 acre parcel. They put in a 5 mile pipeline several miles away, and split the acreage into smaller parcels and sold them. That ROW still shows up on my title search. I can't find a current owner (company is long gone), but the title company says they won't insure that someone can't come back and be able to put a pipeline through our 13 acre woods. We are seriously considering "walking", even though it will cost us thousands that we've already spent for the loan origination fee, earnest money, inspections, appraisals, title search, etc. 


I'm just bummed, bummed, bummed. This was the perfect place for us, too. Nice house with wood-burning furnace, on 13 acres of woods at the top of a hill, and right across from a bike trail. And a decent price. Sigh.


And the realtor, seller, and title agency can't believe that we are upset that we weren't told that this ROW was on the property. They said it's no big deal.


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## Darren (May 10, 2002)

You'd never buy property around here. I have no idea how many pipelines cross this place. If I had to guess, I'd say four maybe five. Some are smaller collection lines. One is 16" or 18". One 8" line built in the 1920's runs not far behind the barn.

Personally I wouldn't worry about the old right of way.


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## cc-rider (Jul 29, 2003)

Having a pipeline going through my property wouldn't be as big of a deal if it was already there. But since it ISN'T there and they can come in anytime they want and put one in, that's a huge deal. They can cut down a swath through my woods, they can tear up my driveway, they can do anything they want as long as they replace damaged grain crops. Yeah, right. What about 100 year old trees??


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## simi-steading (Sep 27, 2012)

Just think of all the firewood they would save you from having to cut.... Some times you gotta look for some good to keep from crying...

I think a real estate attorney at this point would be better than just walking away and losing all the other money...


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## cc-rider (Jul 29, 2003)

The realtor just called and proposed a deal if the seller will go for it. We will extend the contract (another 6 weeks) to give the SELLER time to get the exceptions removed from the title. I even told them what volume and page they can find the lease on. I'd think the title company could have done all of this. Not sure what we are paying them for! So, if THEY will hire the lawyer to get it worked out, we'll follow through. You'd think they would go for it...we gave them a full-price offer with no continguencies except a clear title.


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## ozarkchaz (Feb 4, 2005)

If Ohio requires full disclosure on property transactions, this should have been in the sales contract. 
Easements and Right of Ways can be a hassle....Especially abandoned ones. 
If you can postpone closing, until you seek legal advice on both issues, it would probably be best.


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## simi-steading (Sep 27, 2012)

Sounds like a good deal to me... The Realtor needs to stress to the seller they didn't disclose the ROW, and since they knew about it, they will be responsible for making all your expenses whole again... That will give the seller a lot of motivation to take care of it..

Just curious, is the realtor your realtor, theirs, or acting as a double agent?


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## cc-rider (Jul 29, 2003)

I have my own realtor, but of course they are all friends. I just thought of something funny. When we did the inspection, after the realtors and the inspector left, the owners showed up, so we talked with them. Really nice old couple. He's afraid of dying and leaving all that land to his wife who isn't keen on the woods and upkeep anyway. But I digress....

Anyway, he says, "hey, my realtor says that you want possession at closing, so we are renting a house so we can be moved out right away". We had never said any such thing, and the contract says 30 days after closing. But we didn't say anything more...just laughed it off. Later, he mentions that he's renting a house from his realtor!!!! So of course the realtor wants us to have possession immediately....he wants more rent! I hadn't thought of that until I was thinking that they realtor should pay the lawyer -- it'd only cost him a couple weeks rent money.


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## cc-rider (Jul 29, 2003)

I'm going to go look up that ROW again to see exactly what it says...and the disclosure form. Of course, even if they drop the earnest money deposit and we somehow get out of paying the title company for what they (didn't) do, we still have the expenses of the appraisal, the inspections (well, septic, building, pests), and the costs of securing a loan.


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## SteveD(TX) (May 14, 2002)

I have bought property with pipeline easements - in this part of Texas it is extremely common. The bad part is - they are often written as "blanket easements", which means they can use any part of your property that they want. However, it is very rare that they take advantage of that since it will typically cause a court battle and bad press.

A real estate attorney can sometimes help you get the easement declared as abandoned, or perhaps get in contact with the true owner of the easement since some entity probably owns it now even though the original company is gone. Sometimes it involves purchasing the old abandoned easement back. It can get costly but not always.


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## norcalfarm (Feb 11, 2009)

We are a few days from closing on a property with a similar situation. This parcel has an easement to an electric company that no longer exists from 60 years ago. There is no exact easement location given. We called the current electric and water companies and asked for the records of all easement they own on this parcel and within a couple of days they produced them for us. They had current easements (which also showed on title report) and did not show the easement in question. We had to decide whether it was worth the risk but in the end to us we figured that if they already power through our property they(whoever now owns it) likely would not use this easement. Also we figured that if the title company could not find a location, any company trying to utilize this easement would have difficulty finding the legal location.


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## ozarkchaz (Feb 4, 2005)

Norcalfarm,

The seller may be unaware that they may already_ own_ rights to the Easement by default. Consult an attorney on a "adverse possession" claim.


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## SteveD(TX) (May 14, 2002)

ozarkchaz said:


> Norcalfarm,
> 
> The seller may be unaware that they may already_ own_ rights to the Easement by default. Consult an attorney on a "adverse possession" claim.


You cannot gain rights to an easement owned by others through adverse possession. The seller is already the fee owner of the encumbered land and an easement, unless for a specific period of time, will remain in perpetuity unless it is conveyed to others by legal conveyance such as a sale or by court order.


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## ozarkchaz (Feb 4, 2005)

> You cannot gain rights to an easement owned by others through adverse possession


Real Estate Law varies from state to state. You may or may not be correct in your observation. Also...It may be difficult, if not impossible, to have a court legally convey an easement from a non-existent owner/company of record. Depending on juristriction, the court may consider an abandonment judgement, leading to a legal conveyance of the easement.

OP: Consult a Competent Real Estate Attorney in your area.


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## SteveD(TX) (May 14, 2002)

ozarkchaz said:


> Real Estate Law varies from state to state. You may or may not be correct in your observation. Also...It may be difficult, if not impossible, to have a court legally convey an easement from a non-existent owner/company of record. Depending on juristriction, the court may consider an abandonment judgement, leading to a legal conveyance of the easement.
> 
> OP: Consult a Competent Real Estate Attorney in your area.


How in the world would a fee owner be in "adverse possession" of a property they already own? Sometimes adverse possession results in a prescriptive easement, but this entails property owned in fee by others.

I have acted as a consultant for various cities, counties, the State of Texas, and various entities of the Federal government and have never heard of the concept of gaining ownership of an easement via adverse possession of your own land.


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## ChristieAcres (Apr 11, 2009)

Excellent post, SteveD! 

I had one Client gain ownership of an easement, but it was gained by a dissolution of the Easement by the Owner of it (the City). This allowed that Client to split her property into two building lots and I sold them for her. Nope, no such thing as Adverse Possession to gain Ownership of an Easement (a Right of Use). It isn't uncommon for property owners to plant trees on Rd Easements, then sadly witness them all cut down to widen the roads...


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## ozarkchaz (Feb 4, 2005)

> How in the world would a fee owner be in "adverse possession" of a property they already own?


This is the whole point of the discussion. The Easement is owned by others, and the buyer would like clear title to it. 

If there is only one fee owner of the entire property, obviously they have paid taxes on the Easement as part of that property, have maintained it, and been in "possession" for most likely many years. It is correct that Easements and ROW's traditionally "run with the land" and are deeded forever. But this may be a unique situation.

A court of law may look favorably toward a legal reconveyance or judgement, if the Easement portion of the property is proven to be abandoned, and no owner of record can be found.


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## Gray Wolf (Jan 25, 2013)

No idea what the laws are there, but in WA the seller has to fill out and sign a disclosure form stating the condition of the property to the best of their knowledge, and it has to be given to the buyer. Lead paint, asbestos, burried fuel tanks, nuclear waste dump etc. etc. And easements. A knowledgeable misstatement / lie should get at least your earnest money back and maybe more.


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## ChristieAcres (Apr 11, 2009)

Gray Wolf said:


> No idea what the laws are there, but in WA the seller has to fill out and sign a disclosure form stating the condition of the property to the best of their knowledge, and it has to be given to the buyer. Lead paint, asbestos, burried fuel tanks, nuclear waste dump etc. etc. And easements. A knowledgeable misstatement / lie should get at least your earnest money back and maybe more.


You are correct. This is a Form17 Seller Disclosure.

If they don't want to disclose, they can check the box marked, "I don't know." That excludes them from liability as it sometimes is difficult to prove they knew. I inform every single Client to read their Title Report, page by page! That is another "out" for Earnest Money, should there be undisclosed Easements (there is a Contingency Period for reviewing Title Reports). Many folks don't know much about Bundle of Rights and many buy properties not knowing which ones they lack. I read through every Clients Title Report, so I can be another set of eyes for them. The Escrow Officer I use, does the same thing. I try to insure my Clients don't miss something.


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## SteveD(TX) (May 14, 2002)

lorichristie said:


> Excellent post, SteveD!
> 
> I had one Client gain ownership of an easement, but it was gained by a dissolution of the Easement by the Owner of it (the City). This allowed that Client to split her property into two building lots and I sold them for her. Nope, no such thing as Adverse Possession to gain Ownership of an Easement (a Right of Use). It isn't uncommon for property owners to plant trees on Rd Easements, then sadly witness them all cut down to widen the roads...


I am one of the appraiser/consultants that TxDot refers property owners to, when the owner is seeking to "buy back" an easement that was either never needed, or perhaps was once needed but never conveyed back to the fee owner. Everything from right-of-way when the road was built in another location, to a borrow pit easement or sight-line easements; some of these people have never heard of. TxDot by law requires that these be purchased by the property owner at current market value. I am involved with explaining what is involved to the property owner, and acting either as a middle man for the condemning authority and sometimes as the appraiser working for the property owner in these circumstances. The most recent case involved a borrow pit the state needed when they constructed a State Highway in the 1930's (used for 70+ years by the property owners as a stock tank). It still had to be paid for by the owner for the easement to be relinquished by the state. So I know a little about the subject, although I only do it in Texas. However I have a couple of texts and publications of guidelines concerning the appraisal of and relinquishment of easements. One that the state still uses was provided to me by the U.S. Army Corps of Engineers and was my bible for a large creek widening project I worked on for them in combination with the State and a local city.

I'll say it again - I've never heard of adverse possession as it relates to the relinquishment or abandonment of an easement for the benefit of the fee owner. Doesn't make sense to me. But get the advice of a local attorney familiar with real estate laws in your state if you want to be sure.


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## ChristieAcres (Apr 11, 2009)

SteveD(TX) said:


> I am one of the appraiser/consultants that TxDot refers property owners to, when the owner is seeking to "buy back" an easement that was either never needed, or perhaps was once needed but never conveyed back to the fee owner. Everything from right-of-way when the road was built in another location, to a borrow pit easement or sight-line easements; some of these people have never heard of. TxDot by law requires that these be purchased by the property owner at current market value. I am involved with explaining what is involved to the property owner, and acting either as a middle man for the condemning authority and sometimes as the appraiser working for the property owner in these circumstances. The most recent case involved a borrow pit the state needed when they constructed a State Highway in the 1930's (used for 70+ years by the property owners as a stock tank). It still had to be paid for by the owner for the easement to be relinquished by the state. So I know a little about the subject, although I only do it in Texas. However I have a couple of texts and publications of guidelines concerning the appraisal of and relinquishment of easements. One that the state still uses was provided to me by the U.S. Army Corps of Engineers and was my bible for a large creek widening project I worked on for them in combination with the State and a local city.
> 
> I'll say it again - I've never heard of adverse possession as it relates to the relinquishment or *abandonment of an easement for the benefit of the fee owner. *Doesn't make sense to me. But get the advice of a local attorney familiar with real estate laws in your state if you want to be sure.


I don't question your background or credentials, as I agreed with you. In addition, I also agree legal advice should be sought. They do, however, need to find out who the current Easement is owned by. The more information they provide to an Attorney, the less they will pay...

My Client in fact, *paid nothing to the City. * The Easement was for a road to go across a part of her property where it wasn't even possible or necessary. The City relinquished right to this Easement to the Property Owner *at no cost. * This happened in *Poulsbo WA.* I personally saw the paperwork on this as I was the Listing Agent and this was a Sale Contingency. In addition, I have heard of other cases of this happening, here in WA, of course. But this was the only one I had first hand knowledge and actually saw the proof of. Of course, after the sale, the new Owner built a new home on each of the resulting lots (2 tax parcels due to splitting the property). One home sits right on top of what "was" the Easement, and that Owner enjoys a nice view of the Lake.


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## SteveD(TX) (May 14, 2002)

I know you aren't Lori. And I know that easements are sometimes abandoned by their owner, but that doesn't mean that the easement is relinquished and the property is no longer encumbered. Disuse alone doesn't equal abandonment. It's the "adverse possession" term that I have a problem with, since it just doesn't apply here. Some entities will indeed relinquish an unnecessary easement to the fee owner without payment; I was just talking about what I have the most experience with - TxDot.


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## ChristieAcres (Apr 11, 2009)

In that case, the City had the Easement dissolved, as in wiped out. I don't know how this was done, but the Title Report was updated and a home was built right on top of where it was. You obviously can add a lot to the Real Estate Forum with your experience. Yes, absolutely the wrong term, Adverse Possession, to use with Easements.


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## ozarkchaz (Feb 4, 2005)

Lori & SteveD, 

I value your input and respect your experience on the subject, but a precedent court case has already been established. 

If i may, I'll post a link here:

http://www.bw-legal.com/News/nbin/NolanCREJArticle.pdf


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## ChristieAcres (Apr 11, 2009)

ozarkchaz said:


> Lori & SteveD,
> 
> I value your input and respect your experience on the subject, but a precedent court case has already been established.
> 
> ...


Interesting Article and that is in CO, so precedent set there. Every State has its own RE Laws. It is very interesting to hear about the differences, too.

That is a Right of Way Easement, yes. I had never heard of that, due to being in WA. I am sure SteveD hasn't either, since he is in TX. We both stand corrected there, as it does exist in CO. Both SteveD and I both agreed cc rider should seek legal advice.

cc rider is in OH, so OH Laws must be referenced. I sure wouldn't trust what any one says, but seek proof before purchasing.

We were very fortunate to purchase property retaining our full Bundle of Rights (Fee Simple), also without Easements! We do own 3 total Right a Way Easements ( (2) driveways and one adjoining short little road.


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## SteveD(TX) (May 14, 2002)

Interesting and oddball case. Specifically, where it says "the 18-year adversity clock only begins to run when an easement holder demands to use it and is denied that right by the landowner. The termination of a right of way in the case of a nonuser is much more difficult because the landowner must wait for the easement holder to act."

I would think that if the easement holder REALLY wanted to use it and was denied, a lawsuit or other court remedy would be sought by the holder. In this case they didn't for some unknown reason, even after 18 years which finally triggered the favorable result.

Never heard of that; I stand corrected. But anyone who thinks this is normal and would be an option for them should probably forget it IMHO because it involved a very unusual and specific set of circumstances. And almost certainly it would apply to the OP's set of circumstances.


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