The Transfer of Real Property from a Decedent's Estate Greg Henshaw Title Counsel Winston Salem & Greensboro

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1 2013 Seminar Series The Transfer of Real Property from a Decedent's Estate Greg Henshaw Title Counsel Winston Salem & Greensboro Greg.Henshaw@AttorneysTitle.com

2 Speaker: GREGORY D. HENSHAW. Greg comes to Attorneys Title from private practice in Winston-Salem, NC, where he was a sole practitioner in the firm Gregory D. Henshaw, Attorney at Law. His areas of practice included real property law, estate planning and administration and guardianships. Prior to joining Attorneys Title, he also served as the Public Administrator for Forsyth County and as Title Counsel for another title insurance company. He received his B.A. degree from the University of North Carolina at Chapel Hill and his J.D. degree from the Wake Forest University School of Law. Greg is a member of the North Carolina State Bar, Forsyth County Bar Association and the North Carolina Bar Association.

3 The Transfer of Real Property from a Decedent's Estate As our state's population continues to age, real property practitioners in North Carolina will be spending more and more time in the Offices of the Clerk of Courts' Estate Divisions. As we all know, being a competent real property lawyer takes more than just having a working knowledge of real property law. We need to be knowledgeable in many areas of the law, including decedent's estates and guardianships. Understanding the mechanics of an estate administration to determine the ownership of real property is not always as easy as finding a deed from the estate to an heir or a third party in the chain of title. It is important to understand the documents in an estate file, such as wills and trusts, and to understand the statutes relating to the administration of estates and guardianships. This manuscript will give a brief overview of the requirements for the transferal of real property from a decedent's estate or guardianship. When performing a title search on real property, there may be a deed found from the necessary parties to an estate. There may also appear to be a gap in the chain of title where there is no deed out from a landowner to a third party. This will generally indicate the existence of an estate in the chain of title. Upon determining that a parcel of real property has passed through an estate, the first step is to identify and pull the estate file in the Clerk of Court's Office. By reviewing the probate documents, such as the Application for Letters Testamentary or Application for Letters of Administration, it can quickly be determined if the estate is testate or intestate. If testate, the original will document will be included in the file and should be reviewed for information regarding the intent of the deceased with regard to any real property owned at the time of death. If intestate, the Application will list all heirs known to the personal representative. The file will also identify the personal representative appointed to administer the estate. After identifying all heirs and the personal representative in an estate, the title searcher must determine if the real property being examined was properly transferred from the estate. If a gap was found in the chain of title in the initial title search, the names of the heirs should be searched for an out conveyance of the real property. Because title passes by law to the heirs at the time of death of the decedent, or, at the time of the probate of a valid will if one exists, with ownership relating back to the time of death, there is no requirement for a deed to be recorded in the name of the heirs. NCGS 28A- 15-2(b). Otherwise, there should be a deed recorded that was executed by the heirs, devisees and/or personal representative. Who is required to sign on behalf of the estate is a common title issue. When determining the proper parties to join in the deed from an estate, it is important to look at certain time considerations. NCGS 28A is very important in that it sets forth the details as to the rights of creditors in the real property of the decedent, as well as the proper parties to a conveyance. This statute states that if the first publication or posting of the notice to creditors occurs within two years of the death of the decedent, there are two possible outcomes with regard to creditors. First, if the sale of the real property occurs after the death of the decedent but before the first publication or posting of the notice to creditors, the sale is void as to creditors and personal representatives. Second, if the sale of the real property occurs after the first publication or posting but before the approval of the final accounting, the sale is void as to creditors and personal representatives unless the personal representative joins in the conveyance. If the first publication or posting of the notice to creditors does not occur within two years of the death of the decedent, then the sale of the real property is valid as to creditors and personal representatives. What does this mean? If two years have passed since the death of the decedent, the heirs can transfer the property without the joinder of the personal representative and without fear of creditors' claims. If a transfer by the heirs occurs prior to the first publication or posting, the transfer is subject to attack by creditors. In this situation, a title insurer would take 1

4 exception to the rights of creditors, at least until the two year window has closed. Finally, if the transfer occurs after the first publication or posting, the title insurer will require that the personal representative join in the transfer to avoid an exception as to creditors. Other than the joinder of the personal representative in situations described above, there will often be other necessary parties to a deed. If the estate is a testate estate, the will must be examined to determine who the proper parties are to a deed. If the real property is devised to an individual or individuals, those parties must sign, along with their spouses, if any, to release any marital interest that may exist. The issue of spousal joinder can be looked at differently from different legal perspectives. For example, domestic law attorneys often take the position that an inheritance of real property from an estate becomes the separate property of the heir, and the spouse has no interest. Most title insurers, however, will require the joinder of the spouse to release the marital interest. Along with the devisees under the will and their spouses, the personal representative may also be required to join for the reasons described in NCGS 28A-17-12, discussed above. If the estate is an intestate estate, the same rules apply in that all valid heirs, their spouses and possibly the personal representative must join in the deed. If the will specifically devises the real property to the personal representative to sell, the personal representative may execute the deed without the joinder of the heirs. Similarly, if the real property is devised to a trust, the trustee may execute a deed without the joinder of the heirs, pursuant to the terms of the trust agreement. Another possible scenario that the title searcher should be aware of is a situation when the real property must be sold in order to pay the debts of the estate. A question then arises as to the necessity of an order of the court to enable a personal representative to sell real property. If the estate is intestate, the personal representative will have to get an order of the court and must sell the property pursuant to Article 29A of Chapter 1 of the General Statutes, Judicial Sales. If the estate is testate, even if the property is specifically devised to an individual or entity, the will must be examined to determine if the personal representative has the authority to sell without an order of the court. If the will contains a provision allowing the personal representative to sell real property without court order, that may be done, whether or not the property is devised to the personal representative. If there is no specific provision in the will allowing a sale without court order and the real property is devised to the personal representative, but the will incorporates NCGS 32-27(2), the sale may occur without a court order. NCGS 28A-15-1(c). NCGS 32-27(2) allows a fiduciary to sell property, with or without court order, that the fiduciary may hold from time to time. Problems may arise,however, if real property is devised to an heir and the powers are included for the personal representative. Because the personal representative does not hold the real property, it can be argued that the statute does not apply. NCGS 28A-15-1(c) attempts to settle this issue by excepting the requirement to sell real property through a special proceeding if the powers are included. Because this issue can be debated, check with your title insurer if questions arise as to the need to sell with or without court order. Obviously, it is much easier to sell real property without having to go through the court system. As mentioned above, if a court order is required to sell real property, the sale must be made pursuant to Article 29A of Chapter 1 of the General Statutes, Judicial Sales. Sales under this statute are different from the requirements of a power of sale transaction, such as a foreclosure proceeding, so a review of Article 29A is suggested if you encounter such a sale in the chain of title. Sales of this nature are in the form of a special proceeding, so a review of both the estate file and the special proceeding file is required to determine the validity of the transfer. If such a sale is required, note that all heirs and devisees must be made parties to the proceeding and served with notice of the sale. It may also be necessary to have guardians ad litem appointed for minors and unknown heirs. The court may require that the sale be either public or private. 2

5 It often occurs that the proper venue for the decedent's estate is a county or state other than that in which the real property that is the subject of the title search is located. If the decedent's estate is in a county in North Carolina other than that in which the real property is located, the title searcher should look for an estate file in the name of the decedent in the county where the real property lies. This will be an estate file that contains only a certified copy of the decedent's will or other certified court documents that pass title to the heirs or devisees. Such documentation may also be found in the Office of the Register of Deeds. Title to the real property can be transferred as discussed above, unless a court order to sell the real property is required. NCGS sets forth specific requirements for judicial sales of real property outside the county where the order was entered, including separate advertising, sales and reports of sale and a requirement that a certified copy of the Confirmation of Sale be recorded in the Register of Deeds Office in the county where the real property lies. If the decedent's estate is located outside of the state of North Carolina, but the decedent died owning real property in North Carolina, the proper procedure is for the personal representative of the out of state estate proceeding, the domiciliary personal representative, to apply for and obtain ancillary letters to administer the estate of the decedent in North Carolina. The requirements for such ancillary administration are found in NCGS 28A, Article 26. Upon qualifying as the ancillary personal representative of the decedent's estate, the appointed party can administer the estate in North Carolina pursuant to NCGS 28A. This would include the power to transfer real property pursuant to the requirements discussed above. Another related situation that has specific requirements for the transfer of real property is when the owner of the property is incompetent and has had a guardian appointed by the court. The statutory requirements for the appointment of and duties of guardians are codified in NCGS 35A, Incompetency and Guardianship. A guardianship file is handled by the clerk's office as an estate file. If a ward owns real property and is no longer using the property as a primary residence, or if the ward needs to sell the property to create liquid assets, the guardian may petition the court through a separate special proceeding to sell the real property. NCGS 35A As a special proceeding, this is a separate and distinct file from the guardianship estate file. When examining title to real property that has an incompetent owner and a guardianship file in the chain of title, the title searcher should review the special proceeding file to determine that the sale has been handled properly. Remember, unless a valid durable power of attorney is on record, a spouse, family member or guardian ad litem cannot transfer property for the ward without a court order and the joinder of a guardian. NCGS 35A- 1301(b) sets out the findings required by the court before an order to sell is issued. Review the order to make sure it is in proper form. Note that the clerk, in his discretion, may direct that the next of kin or presumptive heirs of the ward be made parties to such proceeding. These heirs are set out in the application for appointment of the guardian in the estate file. This may differ from county to county, but if you find that such heirs have not been joined, it would be wise to question the clerk as to procedure. NCGS 35A-1301(e) states that the procedure for the sale of real property owned by a ward is governed by Article 29A of Chapter 1 of the General Statutes, Judicial Sales. As the procedure in a judicial sale is different from the procedure in a power of sale proceeding such as a foreclosure, it is important to review Article 29A to be able to determine if all requirements of the sale have been met. The title searcher should also always check the file for a confirmation of sale. Such confirmations are not required in power of sale proceedings. The confirmation of sale should be signed by the clerk, District Court judge or Superior Court Judge that ordered the sale. NCGS (a). If the sale of real property was originally ordered by a clerk, and the owner of the property is a minor or 3

6 is incompetent, then the confirmation must also be signed by a Superior Court judge. NCGS (b). If these parties feel that that the bid is not high enough, or if the guardian so argues, the bid will not be confirmed and the sale will be held again. This court approved confirmation should remove the possibility of a third party attack on the validity of the bid. Finally, review the file to determine that a final report has been filed. After reviewing the special proceeding file for the sale by a guardian, if applicable, review the deed out from the public or private sale. Such deeds are usually in the form of a Guardian's Deed or Deed by Guardian of the Estate. Like a deed from a power of sale proceeding, the deed should contain a description of the special proceeding, including the specifics of the sale, any upset bids or resales and the final confirmed bid amount. The deed should be signed by the guardian of the estate or the general guardian as set forth in the confirmation of sale. As there are countless fact scenarios involved with decedent's estates and guardianships, a title searcher needs to be thorough when searching a title that has an estate in the chain. As always, if you have questions about the proper transfer of real property from an estate, please call you title insurer. 4

7 2013 Seminar Series Title Issues 101: Manufactured Homes & Marital Rights W. Paul Lewis Title Counsel Wilmington & Pinehurst

8 Speaker: W. Paul Lewis. Paul is a native of rural southeastern N.C. He received his undergraduate degree in economics from UNC-CH in 1981 and his J.D. from Campbell University in He was admitted to practice in 1984 and became employed by Commonwealth Land Title Co of NC which is a predecessor to Attorneys Title. He is Title Counsel and Branch Manager of the Wilmington and Pinehurst offices of Attorneys Title. He is a member of the North Carolina Bar Association and the Real Property Section of the North Carolina Bar Association Attorneys Title Seminar Series

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10 Lawyers, can you transfer that title with a deed? Is there a Manufactured Home (MH) on the Land? Is the MH to be conveyed with the Land? Close transaction without worry Is there a certificate of title with the DMV? Oops! Someone else has a problem Is there a declaration of intent or MVR 46G recorded with Registry? Is there a certificate of title with the DMV? Transfer title as any other motor vehicle or keep in owner s name File declaration of intent Is it in the name of current owner? Can you find title holder? Prepare MVR 46G to submit to DMV with original title surrender. Record returned MVR 46G at Registry. Post indemnity bond and apply for new title

11 Article 8. Election to Take Life Interest in Lieu of Intestate Share Election of surviving spouse to take life interest in lieu of intestate share provided. (a) In lieu of the intestate share provided in G.S or G.S , or of the elective share provided in G.S , the surviving spouse of an intestate or the surviving spouse who has petitioned for an elective share shall be entitled to take as the surviving spouse's intestate share or elective share a life estate in one third in value of all the real estate of which the deceased spouse was seised and possessed of an estate of inheritance at any time during coverture, except that real estate as to which the surviving spouse: (1) Has waived the surviving spouse's rights by joining with the other spouse in a conveyance thereof, or (2) Has released or quitclaimed the surviving spouse's interest therein in accordance with G.S , or (3) Was not required by law to join in conveyance thereof in order to bar the elective life estate, or (4) Is otherwise not legally entitled to the election provided in this section. (b) The surviving spouse may elect to take a life estate in the usual dwelling house occupied by the surviving spouse at the time of the death of the deceased spouse if such dwelling house were owned by the deceased spouse at the time of the deceased spouse's death, together with the outbuildings, improvements and easements thereunto belonging or appertaining, and lands upon which situated and reasonably necessary to the use and enjoyment thereof, as well as a fee simple ownership in the household furnishings therein, despite the fact that a life estate therein might exceed the fractional limitation provided for in subsection (a) of this section. If the value of a life estate in the dwelling house is less than the value of a life estate in one-third in value of all the real estate, the surviving spouse may elect to take a life estate in the dwelling and a life estate in such other real estate as to make the aggregate life estate of the surviving spouse equal to a life estate in one-third in value of all the real estate. (c) The election provided for in subsection (a) shall be made by the filing of a petition in accordance with Article 2 of Chapter 28A of the General Statutes with the clerk of the superior court of the county in which the administration of the estate is pending, or, if no administration is pending, then with the clerk of the superior court of any county in which the administration of the estate could be commenced. The election shall be made prior to the shorter of the following applicable periods: (1) In case of testacy, (i) within 12 months of the date of death of the deceased spouse if letters testamentary are not issued within that period, or (ii) within one month after the expiration of the time limit for filing a claim for elective share if letters have been issued. (2) In case of intestacy, (i) within 12 months after the date of death of the deceased spouse if letters of administration are not issued within that period, or (ii) within one month after the expiration of the time limit for filing claims against the estate, if letters have been issued. (3) Repealed by Session Laws , s. 5, effective January 1, (4) If litigation that affects the share of the surviving spouse in the estate is pending, including a pending petition for determination of an elective share, then within such reasonable time as may be allowed by written order of the clerk of the superior court. (5) Nothing in this subsection shall extend the period of time for a surviving spouse to petition for an elective share under Article 1A of Chapter 30 of the General Statutes. (c1) The petition shall: NC General Statutes - Chapter 29 Article 8 1

12 (1) Be directed to the clerk with whom filed; (2) State that the surviving spouse making the same elects to take under this section rather than under the provisions of G.S , 29-21, or , as applicable; (3) Set forth the names of all heirs, devisees, personal representatives and all other persons in possession of or claiming an estate or an interest in the property described in subsection (a); and (4) Request the allotment of the life estate provided for in subsection (a). (c2) The petition may be filed in person, or by attorney authorized in a writing executed and duly acknowledged by the surviving spouse and attested by at least one witness. If the surviving spouse is a minor or an incompetent, the petition may be executed and filed by a general guardian or by the guardian of the person or estate of the minor or incompetent spouse. If the minor or incompetent spouse has no guardian, the petition may be executed and filed by a guardian ad litem appointed by the clerk. The petition, whether in person or by attorney, shall be filed as a record of the court, and a summons together with a copy of the petition shall be served upon each of the interested persons named in the petition, in accordance with G.S. 1A-1, Rule 4. (d) In case of election to take a life estate in lieu of an intestate share or elective share, as provided in either G.S , 29-21, or (a), the clerk of superior court, with whom the petition has been filed, shall summon and appoint a jury of three disinterested persons who being first duly sworn shall promptly allot and set apart to the surviving spouse the life estate provided for in subsection (a) and make a final report of such action to the clerk. (e) The final report shall be filed by the jury not more than 60 days after the summoning and appointment thereof, shall be signed by all jurors, and shall describe by metes and bounds the real estate in which the surviving spouse shall have been allotted and set aside a life estate. It shall be filed as a record of court and a certified copy thereof shall be filed and recorded in the office of the register of deeds of each county in which any part of the real property of the deceased spouse, affected by the allotment, is located. (f) In the election and procedure to have the life estate allotted and set apart provided for in this section, the rules of procedure relating to partition proceedings under Chapter 46 of the General Statutes shall apply except insofar as the same would be inconsistent with the provisions of this section. A determination of the life estate under this section may be appealed in accordance with G.S (g) Neither the household furnishings in the dwelling house nor the life estates taken by election under this section shall be subject to the payment of debts due from the estate of the deceased spouse, except those debts secured by such property as follows: (1) By a mortgage or deed of trust in which the surviving spouse has waived the surviving spouse's rights by joining with the other spouse in the making thereof; or (2) By a purchase money mortgage or deed of trust, or by a conditional sales contract of personal property in which title is retained by the vendor, made prior to or during the marriage; or (3) By a mortgage or deed of trust made prior to the marriage; or (4) By a mortgage or deed of trust constituting a lien on the property at the time of its acquisition by the deceased spouse either before or during the marriage. (h) If no election is made in the manner and within the time provided for in subsection (c) the surviving spouse shall be conclusively deemed to have waived the surviving spouse's right to elect to take under the provisions of this section, and any interest which the surviving spouse may have had in the real estate of the deceased spouse by virtue of this section shall

13 terminate. (1959, c. 879, s. 1; 1961, c. 958, ss. 4-8; 1965, c. 848; , s. 27; , s. 3; , s. 22; , s. 5.)

14 2013 Seminar Series Appurtenant Easements and Joint Driveways D. Donovan Merritt Raleigh Branch Manager and Title Counsel

15 D. Donavan Merritt. Don is the manager of the Raleigh office of Attorneys Title and Title Counsel. He provides legal support and advice to the Attorneys Title staff and customers across the state. Don is a member of the Wake County and North Carolina Bar Associations and the Real Property Section of the N.C. Bar Association. He received his undergraduate degree from UNC-CH in 1975 and his J.D. degree in 1978, also from UNC-CH Attorneys Title Seminar Series

16 Appurtenant Easements and Joint Driveways Webster's Real Estate Law in North Carolina (Sixth Edition) defines an Easement Appurtenant as follows: An appurtenant easement is one created for the purpose of benefiting particular land. An appurtenant easement is attached to and passes with a dominant tenement as an appurtenance thereof. It is owned in connection with other real estate and is an incident of such ownership. An appurtenant easement requires two tracts of land owned by two different entities. The dominant tract is the tract whose owner is benefited by the easement. The servient tract is the tract that is burdened by the easement created for the benefit of the dominant tract. (Patrick K. Hetrick, James B. McLaughlin, and James A. Webster, Webster's Real Estate Law in North Carolina: Possessory Estates and Present Interests in Real Property (6th ed.), 15.04, New Providence, NJ: LexisNexis, 2011.) An easement in gross, alternatively, is an easement for the benefit of an individual or entity and exists irrespective of the ownership of any other land. Easements in gross are personal and are not being discussed here. In fact, they are very rarely encountered in the title insurance context, are normally not transferable or assignable and are not particularly relevant in a transfer of real estate where the owner may have a personal easement in gross over unrelated lands. The insuring and conveying of appurtenant easements poses a variety of issues both to our customers and to our staff of title insurance underwriters. Issues vary from the type and extent of the title search required to allow us to insure an appurtenant easement to the contents of the legal description of land benefiting from such an easement and to the wording of the exception that will appear on the title insurance policy where such an appurtenance is involved. A joint driveway is a form of appurtenant easement and is part of the discussion here for that reason. The portion of the driveway that is on the neighbor's lot is appurtenant to the subject lot being searched or insured and the portion that is on the subject lot is appurtenant to the neighbor's. The neighbor's interest in the portion of the driveway located on the subject lot is an exception to title on that lot. If your lot benefits from and is subject to a joint driveway located partly on both lots, then the same analysis applies as if there were a true appurtenant easement that benefits and burdens your lot. Title Search Requirements. If a transaction involves a land/lot acquisition along with the creation of an appurtenant easement for access (Example: A lot without road access is given an easement across the neighboring land in order to create access to a public road), then the title to both the lot being acquired (the dominant estate) and the land that the drive crosses (the servient estate) will need to be searched and certified. If the servient lot is subject to a deed of trust or other lien, then that lien will need to be removed or, more likely, the holder of the deed of trust will need to 1

17 subordinate its interest to that of the proposed easement holder. Once an owner acquires a particular piece of property and is also conveyed the access easement appurtenant to the property (and presumably obtains an owner's policy of title insurance insuring title to both the dominant and servient tracts), then the title search of the property for the next owner does not have to include a search of the ownership of and title to the servient tract. Title to the easement has already been established (as evidenced by the title policy, if available, and if tacking to it is an option for the new buyer) and nothing that the owner of the servient tract has done since the easement was created can impair the title to the easement. Similarly, a transaction involving the financing or sale of the servient tract would not require an investigation of the ownership of the dominant tract. The title to the servient tract would already be subject to the easement and anything done subsequently to the easement by the easement holder would be not affect the servient tract further; that is, the burden or extent of the easement could not be changed or increased without that conveyance appearing in the chain of title of the servient owner during the update period. Legal Description of Land and Its Appurtenant Easement. An appurtenant easement runs with the land. This means that when the property is conveyed to another, the easement is also conveyed even if no mention is made of the easement in the instrument of conveyance. There are situations however, where it is not clear whether the parties intended that a certain parcel or a portion thereof will benefit from the continuation of the easement. Therefore, it is preferred that the legal description of the land being conveyed also include language specifically conveying the appurtenant easement that is intended to benefit the dominant estate. This becomes particularly important in the process of our underwriting of applications for title insurance. The legal description of the land that becomes the insured property under Schedule A of the policy is the same description that the certifying attorney uses as the property that is being certified in the title search and opinion. And it is necessary for the issuance of a title commitment and policy to know that the title to the appurtenant easement (the servient tract) was searched in the title search process. Then, when the documents for the transaction are created, the intention is clear that the appurtenant easement is included in the conveyance. EXAMPLE: BEING all of Lot 1, consisting of acres, as shown on plat entitled Recombination and Minor Subdivision for Johnny L. Sears, dated March 14, 2007, prepared by Benton W. Dewar & Associates and recorded in Map Book 2007, Page 465, Harnett County Register of Deeds. Together with that 50' Ingress, Egress and Utility Easement and 20' Private Drive from Cokesbury Road to Lot 1 as shown said recorded map. Note: If the access easement is not shown on a recorded map as above, then it must be specifically described by metes and bounds in the legal description or by a reference to another 2

18 recorded document containing a specific legal description. EXAMPLE: Together with the easement or easements contained or conveyed in that certain Easement Agreement recorded in Book, Page, County Register of Deeds. Title Insurance Exceptions. Appurtenant Easement - Benefit Only to Insured Land: When the easement is in the form of an access road and only benefits the subject dominant estate, then the title insurance policy will take exception to the terms and conditions contained in the document creating the easement, if one exists. If the easement is not exclusive, that is, for example, if it is for the use of several lots in the same subdivision for access, then the policy will also take exception to the rights of others in and to the use of the easement. EXAMPLE: Exception: Terms and conditions of the Easement Agreement recorded in Book, Page, County Registry, and the rights of others in and to the easement or easements described therein. Appurtenant Easement Benefit and Burden to Insured Land: Where the appurtenant easement is a benefit to the insured land, but the same easement also benefits other lands and crosses and burdens the insured land in some way (i.e., a Cross-Access Easement or Reciprocal Easement for outparcels), the title policy will take exception to the easement document itself and not simply to its terms and conditions. Survey Coverage: If full survey coverage for land benefited by an appurtenant easement is desired, the easement must also be surveyed. The entire easement must appear on the plat as being part of the survey and in the same scale and detail as that of the dominant tract, not just an abbreviated or interrupted version of the easement area. This is easily achieved in a joint driveway situation as shown on the attached survey of Lot 212 of Anderson Creek Club. The driveway apron is a small area extending onto the neighboring lot. This survey was not a recorded plat, so the joint driveway required a recorded easement agreement to describe properly the easement areas on each lot that were title exceptions to that lot and appurtenances to the other one. A copy of the Joint Driveway and Access Easements Agreement is attached. If the easement for which survey coverage is desired provides access to and from a public road hundreds of feet away or more, then survey costs will probably be be prohibitive and survey coverage may not be available for the easement tract (only). An example of a surveyed easement is shown on the attached Subdivision Plat for HCH Properties, LLC. A metes and bounds description of the Joint Driveway Easement benefiting and burdening Lot 3 can be created from the measurements shown on the plat of the easement area. 3

19 Road Maintenance Agreements: It should be pointed out that Road Maintenance Agreements are not necessarily and are rarely easement agreements. If a recorded agreement among the owners of the lots in a subdivision that is served by a private road is found, it needs to be examined to determine if it contains easement language granting access rights to all of the lots it serves. If the agreement only provides for the maintenance of the neighborhood road, then further inquiry must be made to determine if an easement document exists or if legal access is created by virtue of the recorded plat. 4

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