Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes Identifying and Resolving Common Title Defects to Ensure Closing the Deal TUESDAY, JANUARY 29, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Sarah D. Cline, Attorney, Shulman Rogers Gandal Pordy & Ecker, Potomac, M.D. John H. Hawthorne, Member, Protorae Law, Tysons, Va. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes Identifying and Resolving Common Title Defects to Ensure Closing of the Deal

6 Context is everything: which hat am I wearing in this representation? Title agent Buyer s counsel or seller s counsel Lender s counsel Counsel for an angry neighbor 6

7 Litigation perspective How do these disputes occur? Some common themes: New neighbor New construction Changed use in property 7

8 Survey/boundary disputes Whose survey controls? Adverse Possession/Prescription Elements and State Laws Ways to cure Declaratory Judgment Re-surveying Property Swap 8

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12 Transactional perspective Buyer s due diligence Seller s obligation to convey clear title v. minimizing costs that cut into profits Lender s concerns Entitlement concerns and third party consents 12

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15 Identifying Easement and Encroachment Issues: ALTA/ACSM Surveys ALTA/ACSM Surveys are critical to discover issues on-site which may not be evidenced by the public records, particularly including easements, encroachments, and boundary disputes Ordering the survey Table A items Surveying standards of care Measurement Standards Records research Field work 15

16 Access Direct Access to public road Access via easement 16

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21 Easements Privilege without profit Right to use but NOT right to possess Servient v. Dominant Express Easement Appurtenant v. In Gross 21

22 Creation of the Easement Express Easement Implied Easement Easement by Necessity Prescriptive Easement Adverse Under Claim of Right Exclusive Continuous Uninterrupted Knowledge & Acquiescence 22

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24 Easement problems/concerns Blocking the Easement Gating the Easement 24

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27 Indefinite and unclear easements USA CARTAGE v. Baer, 55 A.3d 510, 429 Md. 199 (2012). Burdette v. Brush Mountain Estates, LLC, 278 Va. 286 (2009) and Beach v. Turim, 2014 Va. LEXIS 27 (2014). Easement not described with particularity 27

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32 Encroachments Easement v. Encroachment Easement as an Encroachment 32

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35 Setback violations Local and State Law/Ordinance violations Federal law/regulatory agency violations: Army Corps of Engineers, Wetlands, TVA and other challenges Documentation/History is Key 35

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37 CC&Rs and Equitable Servitudes Easement v. License Easement as an equitable servitude Plain language of the CC&Rs Extinguishment or Abandonment of the Easement Effect on title to the real estate 37

38 Easements and Encroachments Easement v. Encroachment Encroachment Defined Easement as an Encroachment 38

39 Various Equitable Servitudes Types of Equitable Servitudes Easement as an equitable servitude Easement v. License Easement v. Covenant Plain language of the CC&Rs Extinguishment or Abandonment of the Easement Effect on title to the real estate 39

40 The Covenant Agreement between one or more parties that governs how real property will be utilized Right to use but NOT a possessory interest Affirmative Obligations Negative Covenants 40

41 Creation of the Covenant Restrictive Covenants Running With the Land Equitable Easements or Equitable Servitudes Enforcement of the Covenant Privity Horizontal Privity Vertical Intent Touches and Concerns In Writing 41

42 Covenants, Conditions and Restrictions (CC&R s) Plain language of the CC&R s Violation of the CC&R s Enforcement of the CC&R s 42

43 The License Right to utilize but NO interest in the real property at all Conditional Time and Use Creation of the License Express agreement Actions of the owner Practical Examples in the Commercial Context 43

44 The Lease Right to possess AND utilize Interest in the real property conditioned upon time and use Interest that can be superior to future conveyance or liens Back to example of License v. Lease Creation of the Lease Oral v. Written 44

45 Survey/boundary disputes Whose survey controls? How do these disputes occur? Adverse Possession/Prescription Elements and State Laws Ways to cure Declaratory Judgment Re-surveying Property Swap 45

46 Sarah D. Cline Shareholder Sarah Cline gets deals done. A transactional attorney with significant experience in both residential and commercial real estate deals, Sarah uses her litigation background to anticipate potential problems in a real estate transaction, and to address them before they cause undue delay or expense. While her legal practice encompasses a broad range of real estate related areas, Sarah focuses her practice on the representation of buyers, sellers and lenders in the acquisition, sale and financing of real estate. A recognized leader in both the local and national legal communities, Sarah currently serves on the Section Council for the Real Property Section of the Maryland State Bar Association s Young Lawyers Section, co-chairs the Bar Association of Montgomery County s Real Estate Law Section, and serves as Vice-Chair of the Single Family Residential Committee in the American Bar Association s Section of Real Property, Trusts and Estates. 46

47 John H. Hawthorne Partner John H. Hawthorne is a partner at Protorae Law, PLLC, a business law firm located in Tysons Corner, Virginia. He heads the firm s real estate practice group. Mr. Hawthorne has been involved in the real estate field in various capacities for the past sixteen years. He maintains an extensive transactional practice which includes matters with a specific emphasis on sales and purchases of commercial real estate, distressed assets, leasing projects and the development of real estate. Such matters have included the negotiation of complex purchase and sale transactions involving historic buildings, restaurants, church properties, retail establishments, multi-party leasing arrangements, and tenancy in common agreements. Mr. Hawthorne also represents clients in complex real estate litigation matters. He has represented clients in state and federal courts and has particular experience with easement and boundary line disputes, injunctions preventing the sale and encumbrance of real estate, complex landlord-tenant disputes and other various contractual disputes involving the ownership of real estate. In addition to his legal representation, Mr. Hawthorne has served as an adjunct lecturer for a graduate business program and has been a presenter at continuing legal education classes. Mr. Hawthorne has also routinely hosted and presented real estate seminars for local chambers and other various real estate groups. Mr. Hawthorne is an Area Representative of the Virginia State Bar s Real Estate Section and is a member of the Fairfax Bar Association. 47