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Building on an easement that is part of someone else's parcel

jar546

jar546

CBO
Joined
Oct 16, 2009
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Not where I really want to be
I know that the verbiage in the easement has a lot to do with it, however, how does your state/jurisdiction handle work being done on a parcel owned by person A when the work is being done by the person who has the easement access?

Example.

Lot A is owned by owner A but owner B has access to the beach through an easement located on owner A's property. Easement person B wants to build a dune walkover within the confines of the easement even though it is technically on property A's parcel.

Permits for us are issued for the parcel on which they are located. Is it fair for owner A to have a potential tax liability on his parcel when an improvement is done on the easement that crosses through his property/parcel?
 
Interesting. I would assume that there would be a contractor involved, and it would be their responsibility to manage the intricacies of easements and ownership. I would also assume that the Lot A owner would have to approve the work done, and would be benefitting from the improvements, and apparently at no cost to them. Since they are theoretically getting the improvements to their property (regardless of who pays for it) it would make sense that they would incur the potential tax liability. Just my opinion though...
 
Here the verbiage spells it out what can be done and if it's not there, it would need to have an addendum filed allowing the other party rights to do the change with consent from both parties.
 
You’re right that the specific language is important. If it was a utility easement, the poco could build on it at will. Since it's an access easement, the intent was probably access only. No ownership, no rights, no liability.
 
Joe.B said:
Interesting. I would assume that there would be a contractor involved, and it would be their responsibility to manage the intricacies of easements and ownership. I would also assume that the Lot A owner would have to approve the work done, and would be benefitting from the improvements, and apparently at no cost to them. Since they are theoretically getting the improvements to their property (regardless of who pays for it) it would make sense that they would incur the potential tax liability. Just my opinion though...
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Even if it was allowed I don't see why owner A should be subject to additional taxes for something that owner B wants! Even if he benefits from the improvement8e didn't initiate nor pay for the improvements and shouldn't have to have his taxes increased because of an improvement at somebody else wanted and paid for! As stated by previous posters it's going to come down to the wording of the easement agreement.
 
very specific to the language of the easement, I have heard of easements that have been ligated when the right to pass and re-pass was unclear from years ago when foot traffic as the norm, and now the passers want to use motorized vehicles.
 
The verbiage in the easement is everything, and who can use for what purpose should be or should have been very specific.

I split a property about 27 years ago, a portion was given to the town and the balance was 3 large lots.

Town wanted an easement for the township horse trail rider's association to pass over a portion of the property to go from the park to another section of land the town owned as part of the applications for approval agreement. We had it spelled out that it was only for those members of the trail association in good standing, and they had to waive liability and have their own insurance coverage.

Joggers and MT bikers started using the trail, I forced town to correct the issue and police it.

Just because they can use it to walk to the beach, does not mean they have approval to landscape and run sand buggies.
 
Without reading the legally recorded easement there is no way to comment. It would make sense that if there is a deviation from the original easement, whether explicit or perceived, a new easement should be drafted and recorded. As to the B/S responsibility...A contractor obtains a permit without any proof of who owns a property. A private easement would not show up on a B/S record .... so who would challenge the dune walkover in Florida?

Where this happening in California there would be hoops...The Coastal Commission, The Sierra Club, The Policy Committee on Climate Change, The Gender Affirmation Council, just to name a few.
 
Yes, yes, yes, wording...

Assuming there is nothing in the wording giving Owner B sole discretion on construction within the easement, I would say Owner A would still need to authorize the permit to be issued. It is still their property after all.

I started to say utility easements are a little different since power lines/poles and piping are to be expected, but if I can't walk over the dune because it becomes protected, maybe a dune walk-over is to be expected. Now I am second guessing myself.

As far as the liability/taxes/etc., Owner A consented to the easement and everything that goes with it either as it was being created or when they were purchasing it(provided their lawyer did their job of course).

One thought though, If Owner B has full discretion for construction on the easement, why did the portion not get sold to Owner B and Owner A have a easement for access?

Who pays for maintenance would be another interesting question.
 
tmurray said:
One thought though, If Owner B has full discretion for construction on the easement, why did the portion not get sold to Owner B and Owner A have a easement for access?
.
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First, we don't know that B has discretion for construction, and in fact it reads that he does not. B ”wants” to build the improvement, the OP question is … to whom is the permit issued?

Second … it‘s possible the number and spacing of boardwalks is restricted. Maybe one every 300 ft, so B’s property cannot have one.

Third ... the permit could be denied anyway. They have the basic easement to walk through the dunes, now they want a boardwalk with handrails to make it easier. Need to get approval from the Friends of the Turtle Society.
 
e hilton said:
First, we don't know that B has discretion for construction, and in fact it reads that he does not. B ”wants” to build the improvement, the OP question is … to whom is the permit issued?

Second … it‘s possible the number and spacing of boardwalks is restricted. Maybe one every 300 ft, so B’s property cannot have one.

Third ... the permit could be denied anyway. They have the basic easement to walk through the dunes, now they want a boardwalk with handrails to make it easier. Need to get approval from the Friends of the Turtle Society.
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Sorry, I was hypothesizing.

Are we wondering who the permit owner is? That would be a good question as if there is a dispute between the two owners, one could cancel it on the other.

For us, the property owner would always be the owner of the permit. However, we likely would not cancel the permit knowing the situation.
 
This is totally awsome dude, all I need is some tasty waves and some cool buds! and an addendum to the easement, it's all copacetic dude!
 
tmurray said:
Are we wondering who the permit owner is? That would be a good question
For us, the property owner would always be the owner of the permit.
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That’s what Jar posted in the OP: B wants a permit to build on property owned by A.
 
jar546 said:
Lot A is owned by owner A but owner B has access to the beach through an easement located on owner A's property. Easement person B wants to build a dune walkover within the confines of the easement even though it is technically on property A's parcel.
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AUTHORIZED AGENT FORM I _________________________ as owner of ________________________________________ (print name of owner) (property address) do hereby authorize _________________________ to act as my agent in submitting building (name of authorized agent) permit applications to the Town of Highland Beach. I understand that I am the owner of record responsible for the permit applications submitted by my agent referenced above. I further understand that each time my agent submits an application or signs any required documents, that the individual must exhibit this authorization form to the permitting staff. The owner’s signature is to be notarized. ________________________________________ Date: ___________ Owner’s Signature State of Florida County of ______________________________ The foregoing instrument was acknowledged before me this ________ day of ________, 20____ by ___________________________________ who is personally known to me________ or has provided the following identification____________________________ ____________________________________________ Date: _____________ Notary Public’s Signature

It is pretty cut a dry in Florida that the Owner as recorded in the public records must authorize for someone to act as their represented for a permit. However, here in Montana we do not require such documentation/affidavit
 
I'm not a lawyer, but here's how I would do it:
Owner "A" has the land where "B" has an easement and "B" wants to build the dune walkover.
Owner "A" has no upside, other than the convenience of also using the walkover.

Here's how we would make it complicated in California, to the point where only the rich can afford to do it.
  • B provides indemnification and insurance for the construction and use.
  • B obtains all required permits
  • A and B execute a private conditional agreement, which covers responsibility for maintenance, and where B provides annual payment to cover property taxes based on the value of the improvement, and soft costs associated with drafting the agreement and handling the accounting, escrow, etc.
  • B posts a bond equal to the cost +20% of demolishing the dune walkover. The bond money can be used if B fails to make annual payment or fails to maintain the improvement.
 
Yikes said:
Here's how we would make it complicated in California
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Hahaha yeah that's about right, which is why the reality (at least up here behind the redwood curtain) is that people are going to do whatever they want and hope they don't get caught. If they do get caught they will say "I didn't know" and then ignore any enforcement actions.
 
e hilton said:
No beachfront property up there? Want to buy some?
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No beachfront but a lot of lakes, rivers and streams that people want to access. Under Montana law all land and water below the high water mark is public and therefore if your property is adjacent to that water you can't keep someone from using water and land located below the high water mark. They have access by water or walking the river and or its banks
 
Off topic, but a marginally related story about easement obligations:
Here in Southern California, State Hwy 39 used to connect the San Gabriel Valley to towns on the other side of the mountains, but after numerous rockslides Caltrans determined in the 1980s that one hillside segment would never be stable enough to provide a permanent solution. So now we have two segments from either end that dead-end 30 miles into the middle of the forest. Caltrains would normally close off and abandon this kind of road, as their budgetary mandate is to link towns, not build roads to nowhere.

The interesting thing here is that in the 1930s when the federal government and the state worked out the roadway access, the agreement included a provision that if the road were to be permanently closed, Caltrains would have to pay for its removal and restoration of the landscape to its pre-constructed natural condition. This is a virtually impossible obligation, given that the road was blasted into the mountainside. So at this point, Caltrans is perpetually obligated to maintain the dead-end roads that connect no towns to each other. This has been a headache to the state, but a boon for outdoor recreation access.

Caltrans has offered to donate the highway to LA County, and the county has wisely and graciously declined.
 
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