5409.17_20
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FOREST SERVICE HANDBOOK
Denver, CO
FSH 5409.17 - RIGHTS OF WAY ACQUISITION
R2 Supplement No. 5409.17-93-2
Effective March 31, 1993
POSTING NOTICE. Supplements to this title are numbered consecutively. Post by
document name. Remove entire document and replace with this supplement.
Retain this transmittal as the first page of this document. The last supplement to
this Handbook was Supplement 5409.17-93-1 to Chapter 10.
Document Name
5409.17_20
Superseded New
(Number of Pages)
10
Digest:
Adds material from 5400 and R2 Rights-of-Way Working Tools to appropriate place
in handbook.
ELIZABETH ESTILL
Regional Forester
R2 SUPPLEMENT 5409.17-93-2
EFFECTIVE 3/31/93
5409.17_20
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FSH 5409.17 - RIGHTS OF WAY ACQUISITION
R2 SUPPLEMENT 5409.17-93-2
EFFECTVE 3/31/93
CHAPTER 20 - TITLE CLEARANCE AND APPROVAL
21 - TITLE EVIDENCE.
21.15 - Period of Search. The Regional Attorney has not authorized the use of lastowner searches for acquiring easements in Region 2. Title Commitments or
Preliminary Title Insurance Policies are required for Preliminary Title Opinions
and Title Insurance Policies conforming to Department of Justice Standards and
dated after recording of the easement deed, are required for Final Title Opinions.
Request Final Title Policies on ALTA 1963 or ALTA 1991 forms when ordering the
initial commitment or preliminary policy. Title Commitments may be accepted in
any format. There are no standard U.S. Policy formats for Title Commitments.
There may be instances where an Abstract of Title can be used. These shall be
discussed with R-2 Lands on a case by case basis.
21.3 - Curing Title Defects.
21.32 - Mortgage Liens. Deeds of trust are most commonly used in Colorado, except
that the Federal Land Bank continues to use mortgages. In other States, mortgages
are customarily used. A deed of trust differs from a mortgage in that a deed of trust
conveys the property to a trustee in trust for the holder of the indebtedness.
To obtain a partial release of a deed of trust, the holder of the indebtedness must
request the release by letter, or by signing the request at the bottom of the form of
partial release. This authorizes the Public Trustee to execute the partial release.
Requirements concerning the authority to execute a request for a partial release of
a deed of trust are left to the discretion of the Public Trustee. Generally, the Public
Trustee does not require evidence showing that the Board of Directors of a
corporation has authorized the president or the secretary to execute the request, or
that an executor or administrator has been empowered by the Court to sign legal
instruments for an estate.
When a deed of trust is subordinated to the easement, the subordination agreement
should be executed by the individual or corporation who loaned the money, not the
public trustee. Most individuals and many loan organizations may have their own
forms and procedures for granting subordination agreements or partial releases. In
such situations, the grantee is generally requested to submit a suitable instrument
for review and approval. Sample forms of subordination agreements for both
individuals and corporations are shown in exhibits 01, 02, 03, 04, 05 and 06.
In some cases the easement deed will not be of record at the time the subordination
agreement is requested. In such instances, the descriptions of the land crossed and
the easement being acquired shall be included in the subordination agreement as
shown in exhibit 02.
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EFFECTIVE 3/31/93
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Exhibits 03 and 04 illustrate acceptable forms for partial release of mortgages and
deeds of trust. These forms may be used for either individuals or corporations.
Exhibits 05 and 06 illustrate acceptable forms for subordination of deeds of trust.
Exhibit 06 is to be used where the deed of trust is subordinated prior to recording of
the right-of-way easement. Subordination agreements or partial releases should be
recorded.
21.32 - Exhibit 01
SUBORDINATION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, That
as owner and holder of a certain real estate mortgage, made and executed by
of
County, State of
, recorded
(Date)
, in Volume
of
Mortgages at page
in the office of the County Clerk and Recorder of
County, (State)
, for value received, does hereby agree that the lien of said
mortgage shall be subordinate to the interests of the United States of America and
its assigns under that certain right-of-way deed dated (Date)
, executed by
recorded (Date) , in Volume
, of Deeds at Page
in the office of the
County Clerk and Recorder of
County, (State) , conveying an easement
for a road over and across the
(Description of lands crossed by easement)
,
County,
(State) , consisting of
acres.
PROVIDED, That if said right-of-way is abandoned by the United States and
the easement reverts to the mortgagors or their assigns, this agreement shall be of
no force and effect.
Mortgage Holder
ACKNOWLEDGEMENT
State of
)
) ss:
County of
)
The foregoing was acknowledged before me this
19 , by
.
day of
,
(Signature)
(Seal)
(Type or Print Name Beneath
Signature)
My Commission Expires:
.
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21.32 - Exhibit 02
SUBORDINATION AGREEMENT
WHEREAS, The
(Mortgage Holder's Name)
of
(City) , a corporation
organized and existing under the laws of the State of
, and fully
authorized to do business in the State of
, is the owner and holder of
a mortgage deed executed by
(Landowners Name)
dated
, and
filed under the date of
, in Book
, at Page
, of the records of
County, State of
, securing an indebtedness as more particularly
identified therein; and
WHEREAS, the United States of America, acting by and through the Forest
Service, Department of Agriculture, will acquire a right-of-way deed and easement
from
(Landowners Name)
, dated
, for highway purposes, over,
upon and across a portion of the lands covered by the aforementioned mortgage
deed, and which right-of-way is more particularly described as follows:
(Description of Right-of-way)
NOW, THEREFORE, in consideration of
($
) and
other good and valuable considerations, the receipt of which is hereby
acknowledged, the
(Mortgage Holder's Name)
, does hereby subordinate
its lien and the indebtedness secured thereby and all rights acquired under said
mortgage to the right, title and interest of the United States of America in and to
the property (to be) acquired by the above-mentioned right-of-way deed.
The
(Mortgage Holder's Name)
, by this instrument agrees that the
interests, rights, and privileges acquired by the United States of America by said
right-of-way deed may be exercised in accordance with the terms and conditions
thereof, free and clear of the rights of
(Mortgage Holder's Name) under said
mortgage deed.
IN WITNESS WHEREOF, The said
(Mortgage Holder's Name)
has
caused its corporate seal to be hereunto affixed and these presents to be signed and
delivered in its corporate name by and through its duly authorized officers this
day of
, 19 .
(Corporate Seal)
By:
, Secretary
, (Title)
ACKNOWLEDGEMENT
(Use Appropriate Acknowledgement Format)
R2 SUPPLEMENT 5409.17-93-2
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21.32 - Exhibit 03
PARTIAL RELEASE OF MORTGAGE
KNOW ALL MEN BY THESE PRESENTS, That
the
owner of a certain mortgage executed by
on the
day of
, 19 , in Book
at Page
of the records of
County,
(State)
,
in consideration of One Dollar ($1.00) and other good and valuable considerations,
the receipt of which is hereby acknowledged, does hereby release from the lien of
the said mortgage the following described property:
(Describe Right-of-way)
Only the above described property is released from the lien of the aforesaid
mortgage. This release shall not affect or modify the obligations secured by the said
mortgage and the said obligations shall continue in force and effect until fully paid,
satisfied and discharged.
day of
IN WITNESS WHEREOF, This partial release has been executed this
, 19 .
Mortgage Holder
ACKNOWLEDGEMENT
(Use Appropriate Acknowledgement Format)
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21.32 - Exhibit 04
PARTIAL RELEASE OF DEED OF TRUST
KNOW ALL MEN BY THESE PRESENTS, That Whereas,
(Name)
of (City)
, County of
, in the State of
, by Deed of Trust Dated
, 19 , and recorded in the office of the County Clerk and Recorder of the County of
, in the State of
, on
, 19
in Book
at Page
conveyed to the
Public Trustee in and for the County of
,
certain property as in said
instrument described in trust to secure the payment of the indebtedness mentioned therein;
AND WHEREAS, The said grantor has conveyed a right-of-way across the security
property and it is desired to release a part of the security mentioned in said Deed of Trust;
NOW THEREFORE, At the request of the legal holder of said indebtedness, secured
by said Deed of Trust, and in consideration of the premises, and the sum of Two Dollars
($2.00), to me in hand paid, the receipt whereof is hereby acknowledged, I as such Public
Trustee do hereby release and quitclaim unto the present owner or owners of said real
estate and unto the heirs and assigns of said owner or owners forever, all the right, title
and interest which I have under and by virtue of said Deed of Trust particularly described,
reference to which is hereby made for greater certainty so far only as the same pertains to
the following described property, situate in the County of
, State of
, to
wit:
(Right-of way Description)
TO HAVE AND TO HOLD THE SAME, Together with all and singular the privileges
and appurtenances thereto belonging forever, and do by these presents release, cancel and
forever discharge said Deed of Trust, so far as pertains to the property above specifically
described only; otherwise to remain in full force and effect as to the balance of the property
included in said Deed of Trust, and this partial release shall in no way affect or modify the
obligations secured by said Deed of Trust.
WITNESS, my hand and seal this
day of
Public Trustee for the County of
,
, A.D. 19
(State)
.
.
The Public Trustee in and for the said County:
Please execute this partial release as the purposes of said trust have been satisfied so far as
pertains to the property specifically described in the foregoing Partial Release.
(Title)
The legal holder of said indebtedness secured by said
Deed of Trust.
ACKNOWLEDGEMENT
(Use Appropriate Acknowledgement Format)
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21.32 - Exhibit 05
SUBORDINATION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, That
(Name)
as
beneficiary under a Deed of Trust, made and executed by
(Name)
of
County,
(State)
, recorded
(Date) , in Volume
at Page
of the records of
County,
(State) , for value received, does hereby agree
that the lien of said Deed of Trust shall be subordinate to the interests of the United
States of America and its assigns under that certain right-of-way deed dated
,
executed by
(Name)
, recorded
(Date) , in Volume
, of Deeds at Page
in the office of the County Clerk and Recorder of
County, (State)
,
conveying an easement for a road over and across the
(Description of Easement)
,
County,
(State)
,
consisting of
acres.
PROVIDED, That if said right-of-way is abandoned by the United States and
the easement reverts to the Public Trustee or his assigns, this agreement shall be of
no further force or effect.
1/
ACKNOWLEDGEMENT
(Use Appropriate Acknowledgement Format)
1/ To be executed by the money lenders.
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21.32 - Exhibit 06
(For Deed of Trust)
SUBORDINATION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, That
(Name)
as
beneficiary under a Deed of Trust, made and executed by
(Name)
of
County,
(State)
, recorded
(Date)
, in Volume
at Page
of the official records, in the office of the County Clerk and Recorder of
County,
(State)
, for value received does hereby agree that the lien of
said Deed of Trust shall be subordinate to the interests of the United States of
America and its assigns under that certain right-of-way deed dated
executed by
(Name)
and conveying an easement for a road over
and across (Description of lands crossed by easement)
,
County,
(State)
, consisting of
acres, which is described as follows:
(Description of Right-of-way)
PROVIDED, That if said right-of-way is abandoned by the United States and
the easement reverts to the Public Trustee or his assigns, this agreement shall be of
no further force or effect.
1/
ACKNOWLEDGEMENT
(Use Appropriate Acknowledgement Format)
1/ To be executed by the money lenders.
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21.41 - Waiver of Tax Liens. Form R2-5400-12 must be used exclusively in requests
for waiver-of-mortgage and tax liens.
23.34 - Outstanding Rights.
1. Possessory Interests of Tenants, Lessees, and Squatters.
Unrecorded interests may be cured by obtaining a consent worded essentially as
follows:
I (or, we) hereby consent to the granting of a road right-of-way by
(owner)
to the United States of America across (description of land)
owned by the said
grantor and occupied by me (or us) as a (lessee, tenant, or other) .
Date
Signatures
If the person or persons signing the consent are in possession under a recorded
agreement, the consent should be acknowledged before a Notary Public so that it
may also be recorded.
2. Easements. Consent to cross unrecorded third party easements should be
worded essentially as follows:
I (or we) the undersigned owner of an easement for a (describe use)
(across)
(describe property)
do hereby consent to the crossing or
encroachment upon the said easement by another easement granted to the United
States of American for the construction and maintenance of a road designated as ,
subject to the following conditions:
Date
Signatures
If there are no conditions attached, the words "subject to the following conditions"
would be stricken. If the third party easement is evidenced by a recorded
instrument, the consent must be acknowledged before a Notary Public so that it
may also be recorded.