c. elimination as encumbrance 1) express release 2) review of specific facts with underwriter (general description)

Transcription

1 TITLE ISSUES IN EASEMENTS AND CCR S I Easements (the Company ) insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 4. No right of access to and from the Land. Issues a. chain of title - 1) once created they often are not carried forward as part of the legal description 2) right to an easement is one of the appurtenances that are transferred as a matter of law b. inadequate legal description 1) practical location is as established on the ground 2) legally transferred either specifically or by operation of law c. elimination as encumbrance 1) express release 2) review of specific facts with underwriter (general description) Resolution a. endorsement ACCESS AND ENTRY (ALTA ENDORSEMENT FORM 17-06, 6/17/06, OTIRO END. NO INDIRECT ACCESS AND ENTRY (ALTA ENDORSEMENT FORM , 6/17/06, OTIRO END. NO ) UTILITY ACCESS (ALTA ENDORSEMENT FORM , ADOPTED 10/16/08, OTIRO END. NO )

2 These endorsements may be issued for owner s and Loan Policies. The charge for the ALTA (OTIRO End ) is $125. The charge for the ALTA (OTIRO End ) is $150. The charge for the ALTA (OTIRO End ) is $125 plus $25 for each utility included. Appurtenant Easements appurtenant are on land related to the use of other property (dominant estate). If the dominant estate is sold or otherwise transferred to another, the easement over the servient estate is transferred with it. See, Cappelli v. Justice, 262 Or. 120, 496 P.2d 209 (1972); Steelhammer v. Clackamas Co., 170 Or. 505, 135 P.2d 292 (1943); Parrott v. Stewart, 65 Or. 254, 132 P. 523 (1913); see also Scott v. Curtis, 103 Or. App. 389, 798 P. 2d 248 (1990). There is a strong preference for finding that an easement is appurtenant. Verzeano v. Carpenter, 108 Or. App. 258, 815 P.2d 1275 (1991). Express Easements Generally, easements are created by express grant or reservation. Easements are considered perpetual unless they are expressly limited, or terminated by agreement, abandonment, the need no longer exists, adverse possession, or another means of termination. The easement should contain the exact location and scope of uses in the document creating the easement. If the language is unambiguous and clearly defines the location, nature and extent of the easement, the document will stand on its own, and a court will not have to look to the intent of the original parties in resolving a subsequent dispute. Tipperman v. Tsiatsos, 327 Or. 539, 964 P.2d 1015 (1998).

3 (4) Necessity There is a statutory way of necessity under ORS to ORS (2) provides that [w]ay of necessity means: (a) A road established under ORS to to provide motor vehicle access from a public road to land that would otherwise have no motor vehicle access; or (b) A route established under ORS to to provide utility service access from an existing service location to a service point that would otherwise have no utility service access. The grantee must prove that there is no existing, enforceable access to the subject property and such access could not be obtained by some other legal action. Chambers v. Disney, 65 Or. App. 684, 672 P.2d 711 (1983). Economic necessity is not sufficient to permit use of this proceeding. Pike v. Wyllie 100 Or. App. 120, 785 P.2d 764 (1990). Unsuccessful litigation of prior claims for an easement will not preclude a way of necessity Nice v. Priday 149 Or. App. 667, 945 P.2d 559 (1997), rev den 322 Or. 644, 961 P.2d 216 (1998). Plat Reference When property is conveyed by reference to lots on a recorded plat, the purchaser acquires an implied easement for the use of the dedicated streets, parks, or other open areas shown on the plat. See Carter and Mason v. City of Portland, 4 Or. 339 (1873); see also Nodine v. City of Union, 42 Or. 613, 72 P. 582 (1903), Bloomifeld v. Weakland 346 Or 115, 205 P3d 887 (2009) see also ORS (6), , and (5) Prescription To obtain a prescriptive easement, a plaintiff must show use of the land as though it were an easement for ten years in an open and notorious manner that is continuous and adverse to the rights of

4 the servient owner Nice v. Priday, supra citing Thompson v. Scott, 270 Or. 542, 546, 528 P.2d 509 (1974). When a prescriptive easement claimant has established open and continuous use of a 10-year period, a presumption arises that the use was under a claim of right on in a manner that was hostile to the interest of the owner of the underlying property. See R & C Ranch, LLC v. Kunde, 177 Or. App. 304, 33 P.3d 1011 (2001), citing, Feldman v. Knapp, 196 Or. 453, 250 P.2d 92 (1952). The burden of proof then shifts to the property owner to rebut the establishment of a prescriptive easement by showing that the use was permissive. The presumption of hostility or adversity may be rebutted by proving that the claimant was merely using an existing road that did not interfere with the defendant s use or by proving that the use was permissive in some other way. Beebe v. DeMarco, 157 Or. App. 176, 180, 968 P.2d 396 (1998); Arana v. Perlenfein, 156 Or. App. 15, 20-21, 964 P.2d 1125 (1998); House v. Hager, 130 Or. App. 646, 651, 883 P.2d 261, 320 Or. 492, 887 P.2d 793 (1994), Nice v. Priday supra. Notwithstanding a long established series of cases culminating in Johnson v. Becker 137 Or. App. 258, 903 P.2d 901 (1995), subsequent cases appear to be making it more difficult for claimants to secure an easement by prescription. While those cases do not necessarily add new requirements, the holdings seem to suggest a higher standard than previous decisions; e.g. Nice v. Priday 137 Or. 620, 905 P.2d 252 (1995) joint use for over 60 years inadequate to establish prescriptive easement, Hayward v. Ellsworth 140 Or. App. 492, 915 P.2d 483 (1996) use appeared to be due to a friendly arrangement and claimants did not build the road. This has even extended to rights of way claimed to be public, see Petersen v. Crook County 172 Op. App. 44, 17 P.3d 563 (2001). Given the significant numbers of shared roads, particularly in the rural areas, that do not have any official status as accepted roads, dedicated, plat or recorded easements, then recent case of Wels v. Hippe 360 Or 569 P3d. (2016) is particularly important. In overturning the Trial Court and Court of Appeals, the Oregon Supreme Court stated:

5 "To establish that the use of an existing road is adverse, a plaintiff must show that the use of the road interfered with the owners' use of the road or that the use of the road was undertaken under a claim of right of which the owners were aware. In this case, there is a complete absence of evidence in the record of either of those things. We therefore reverse the decision of the Court of Appeals and the judgment of the trial court. The relevant facts are not in dispute. Plaintiff owns three contiguous parcels of rural property near the Rogue River. He purchased the parcels in The nearest state highway, the Crater Lake Highway, is located some distance away. In between plaintiff's property and the highway lie federally owned forest lands and a number of private parcels. Defendants own one of those private parcels, a 20-acre lot, where they have lived since A private dirt road, known as "Lewis Creek Road," runs from plaintiff's property across the federally owned forest land and the intervening private parcels, eventually connecting to another private road and, ultimately, the highway Lewis Creek Road crosses defendants' property and passes within 60 to 80 feet of their house. No one knows who built Lewis Creek Road or when it was first constructed, but old records indicate that it has been in existence since at least Plaintiff and the other private property owners in the area have used it to access the Crater Lake Highway. (Wels supra pps ) The prescriptive easement is created by operation of law, once all the elements have been satisfied. However, in order to perfect the easement, litigation will be necessary d. Location of Easement When the location of an easement is not identified in, the location may be determined by how the parties use the land since the easement was created. Sometimes the instrument creating the easement simply describes the land that it affects with no attempt to specifically locate the easement, commonly referred to as a blanket easement. See Spear v. Cook, 8 Or. 380 (1880). The rule is that unless the owner of the underlying estate

6 locates the easement, the owner of the easement may do so in a manner that will accomplish the intended purpose in a reasonable manner. e. Surcharge An issue can arise when the easement owner attempts to subdivide the appurtenant property that is served by an easement or when attempting to add property to benefit from the easement. When the court finds a surcharge, the remedy is to reduce the intended use or property to that which was originally contemplated by the parties, as opposed to ending the easement altogether.it is clear that the addition of property to be served by the easement will be deemed a surcharge and will be enjoined by the court. The more problematic question is whether a dominant estate can be subdivided without creating a surcharge or overburdening. See, e.g. Patterson v. Chambers Power Co., 81 Or. 328, 159 P. 568 (1916); Ruhnke v. Aubert 58 Or. 6, 113 P. 38 (1911). Termination (1) Merger The doctrine of merger terminates an easement at any such time that the dominant and servient owners are the same. If the parcels are conveyed separately and if the easement is to be maintained, it must be renewed by a specific conveyance. A related matter is based on current practices and some zoning and planning requirements. Many newly developed properties have, as a condition, the requirement that certain easements be recorded as part of the development process. Often these are conveyances of the easement with the grantor and grantee as the same person or legal entity. Any such easement is not valid and must be recreated in the original conveyance from the common owner to a third party. One possible exception would be those that are identified on a plat or partition map, as long as the purpose and beneficiaries of such easements are clearly labeled. (see ORS (6). (2) Abandonment

7 An easement is extinguished when it is abandoned. Abandonment occurs when there is both non-use and an intention to abandon the use of the easement. Shields v. Villareal, 177 Or. App. 687, 33 P.3d 1032 (2001). (3) End of Purpose An easement is extinguished when the purpose on which it is based ends. However, this principle will only be applied in that instance when the written easement contains a clearly stated purpose. If the easement granted is general in nature, no such extinguishment will take place regardless of the parties intention. Cotsifas v. Conrad, 137 Or. App. 468, 905 P.2d 851 (1995). (4) Adverse Possession An easement may be extinguished by adverse possession i.e. when the owner of the servient estate utilizes the property in a manner inconsistent with the easement owner s rights in a manner consistent with adverse possessions, (continuous, hostile, for the statutory period). Faulconer v. Williams 327 Or. 381, 964 P.2d 246 (1998), Uhl v. Krupsky Or.App., P3d (1/30/2013) (5) Foreclosure An easement may be extinguished by the foreclosure of a security interest, trust deed, mortgage, or contract that was recorded prior to the easement. However, a tax foreclosure does not extinguish an easement. Westwood Homeowner s Association v. Lane County 318 Or. 146, 864 P.2d 350 (1993).