5409.17, 20
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FOREST SERVICE HANDBOOK
Portland, Oregon
TITLE 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK
R6 Supplement No. 5409.17-91-2
Effective October 15, 1991
POSTING NOTICE. Supplements to this handbook are numbered consecutively.
Check the last transmittal sheet received for this handbook to see that the above
supplement number is in sequence. If not, obtain intervening supplement(s) at once
from the Information Center. Do not post this supplement until the missing one(s)
is received and posted. After posting, place the transmittal at the front of the title
and retain until the first transmittal of the next calendar year is received.
The last R6 Supplement to this handbook was 5409.17-91-1 (5409.17,10).
Document Name
Sheets)
Superseded New
(Number of
5409.17,20
17
Page Code
21 thru 22.31--2
11
Digest:
This supplement reissues Chapter 20 to conform the format and structure of the
Handbook to the requirements of electronic directive issuance.
Only minor changes to correct spelling, punctuation, and so forth have been made.
This supplement is available in the R6FSH Information Center Service in the same
format as the paper copy.
/s/ John F. Butruille
JOHN F. BUTRUILLE
Regional Forester
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
5409.17, 20
Page 2 of 17
FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
CHAPTER 20 - TITLE CLEARANCE AND APPROVAL
21 - TITLE EVIDENCE.
After the route is selected, and sometime before this decision is made, it is
necessary to obtain accurate information on ownership and status of the nonFederal lands which will be crossed. Preliminary title evidence on these lands
should be obtained as soon as the tracts or subdivisions to be crossed are known.
An exact knowledge of ownership, encumbrances on the title, and conflicting thirdparty interests is necessary before beginning any survey or other work in connection
with the right-of-way.
When existing development roads are to be improved or reconstructed, the status of
the underlying right-of-way should be checked in the Forest status records.
Additional interest may be needed to provide for expanded use.
In Region 6, Forests maintain a separate road right-of-way atlas. This atlas
provides the complete status of existing roads (FSM 5491).
21.1 - Types of Title Evidence. Except in unusual cases, a policy of title insurance
will be used in Region 6.
21.11 - Title Insurance. The only acceptable form is the American Land Title
Association, U.S. Policy Form, 1963.
Often the insurance coverage required by the Attorney General will be less than the
coverage provided under the title company's minimum rate. In these cases, the
policy should be written for the maximum coverage provided by the minimum rate.
When needed coverage exceeds minimum rate, the policy should be written for
maximum coverage for the same rate class.
The policy of title insurance may serve as either a preliminary title instrument or
as final title evidence. When the policy serves as a preliminary report, Schedule A
may show the property as a fee-title ownership in the name of the grantor. The
final policy will consist of the first (preliminary) policy supplemented by an
endorsement subsequent to recording the deed. The endorsement will show the
right-of-way as an easement and the title as vested in the United States of America.
When the preliminary title report reveals troublesome title defects, the case should
be referred to the Unit of Lands before the deed is recorded.
Care should be exercised in placing orders. To avoid inflated charges, clearly
combine all subdivisions under one ownership in one title insurance policy. Red tag
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
5409.17, 20
Page 3 of 17
urgent cases. Set up a system for paying charges promptly after receipt of title
evidence.
Title company personnel have a great deal of expertise in title matters. Forest
personnel should take advantage of this source of knowledge. Normally there is no
extra charge for advice leading to a Policy of Title Insurance.
21.3 - Curing Title Defects. The cardinal rule for clearing title defects is to meet the
requirements of the title company.
Exceptions cleared by recordable instruments should be removed from the policy
following recordation. This may be done before issuance of the policy of title
insurance or by later endorsement.
21.31 - Taxes. Treatment of current taxes is thoroughly covered in parent text and
FSH 5409.17 section 21.4. Treatment of delinquent taxes in Oregon and
Washington is as follows:
1. Interpretation of Delinquent Taxes and Tax Lien. Taxes become
delinquent on the date on which interest is charged. Taxes become a lien on July 1
in Oregon, and when assessed in October (for the coming year) in Washington.
Details of State tax management follow:
a. State of Oregon--Fiscal Year Basis for Property Taxes. Tax levy is
determined in mid-summer for current fiscal year.
(1) Tax statements are issued in October or early November, based on levy
determined in summer meeting.
(2) First one-third taxes due on November 15.
(3) Second one-third taxes due on February 15.
(4) Third one-third taxes due on May 15.
(5) Taxes are a lien as of July 1 of the fiscal year in which levied.
(6) Taxes become delinquent at the end of the quarter due.
b. State of Washington--Calendar Year Basis for Property Taxes. County
courts meet in October each year for the purpose of levying taxes.
(1) Tax statements are issued in February, based on levy determined in
previous October meetings.
(2) First one-half taxes due on April 30 of the year for which levied.
(3) Second one-half taxes due on October 31 of the year for which levied.
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EFFECTIVE 10/15/91
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(4) Taxes are a lien as of the date of assessment in the month of October for
the coming calendar year.
(5) Taxes are delinquent the day following due date.
(6) Taxes for entire year become delinquent if April 30 payment is not paid on
time.
2. Clearing Delinquent Taxes by Authority from Grantor to Withhold Tax
Payment from Consideration. Exhibit 01 may be used to clear a title exception
created by a tax lien against the grantor's property provided the consideration is
more than delinquent taxes. The Option for Easement also provides for clearing the
tax lien (FSH 5409.17 section 11).
3. Clearing Delinquent Taxes by Payment of Segregated Amount. If the tax
problem cannot be cured by an authorization by the grantor to withhold the entire
amount of delinquent taxes, the Forest Supervisor may request the county assessor
to prorate the taxes between the easement and fee. A small tax would remain to be
paid. Some county assessors will, upon a request for proration, set the tax on a road
easement at zero, and carry all the tax on the underlying land.
4.
Clearing Delinquent Taxes by County Statement of Policy. Delinquent
taxes may be waived when the county court of the county involved issues a letter to
the Forest Service stating that tax-titles will except road easements granted the
U.S. of America. The letter should state in essence that:
It will be the policy of
County that when the county sells tax
foreclosed property involving other than property within the limits of the city, the
notice of sale and the deed will contain a provision that the conveyance is subject to
recorded easements to the United States or any Government Agency thereof.
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EFFECTIVE 10/15/91
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Page 5 of 17
21.31 - Exhibit 01
AGREEMENT RE: PAYMENT OF TAXES
WHEREAS, (I) (We)
and
(husband and wife) (Widow)
(Widower) desire to sell to the UNITED STATES OF AMERICA for the
consideration of
(a) right-of-way easement(s) for (a road)
(roads) (the existing road(s)) over our land in list legal description of parcel(s)
crossed):
And the United States of America desires to acquire title to said easement(s) free
from objectional liens and encumbrances.
WHEREAS, said land is presently subject to certain tax liens, including
County taxes for the fiscal year 19 on said land which is
described as parcel(s) number (number(s) from county tax rolls).
NOW, THEREFORE, for good and valuable consideration, (I) (We) agree (I) (We)
will assume responsibility for the payment of all taxes assessed and levied against
the above-described property(ies) and all taxes which may have become a lien upon
said premises as of the date of the recording of the deed conveying the said right(s)of-way to the UNITED STATES. In the event (I) (We) fail to pay said taxes when
they shall have become due and payable or to remove existing tax liens against said
land(s), the UNITED STATES is authorized to pay said taxes and deduct the
amount of the same from the purchase price of said right(s)-of-way or to withhold
from such purchase price an amount sufficient to ensure payment of said taxes or
the removal of said tax liens from the land(s) subject to the easement(s), which
amount so withheld shall be refunded to me (us) when evidence has been furnished
that such taxes are been paid.
DATED this
Witness:
day of
, 19
.
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
5409.17, 20
Page 6 of 17
21.32 - Mortgage Liens. If a waiver is not appropriate, the lien must be
subordinated to the easement. Exhibit 01 provides a format for the Consent and
Subordination Agreement when the mortgage holder does not have its own.
Where the mortgage holder requires payment, an agreement with the landowner to
withhold funds to cover the payment may be necessary. Such agreements will be
referred to the Regional Office for approval prior to execution.
A deed of trust is sometimes used instead of a mortgage. In the deed of trust the
borrower conveys the property to a trustee as security for the indebtedness. When a
deed of trust is subordinated to the easement, the Consent and Subordination
Agreement is executed by the party loaning the money, not the trustee. A partial
release needs to be signed by both, or a letter requesting the partial release written
by the holder of the indebtedness.
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
5409.17, 20
Page 7 of 17
21.32 - Exhibit 01
CONSENT AND SUBORDINATION AGREEMENT
WHEREAS,
, hereinafter called the "CONSENTOR," has an
interest in or lien upon the real property hereinafter described by virtue of
a (1)
dated
, 19 , and recorded
, 19 ,
in Book
, page
, (2)
Records of
County,
State of
, and which interest or lien covers the following described real
property situated in the County of
, State of
,
to-wit:
WHEREAS,
, hereinafter called the "GRANTOR," has
conveyed to the United States of America, hereinafter called the "Grantee," an
easement for right-of-way purposes over and across said real property by virtue of
instrument dated
, 19 , and recorded
, 19 , in Book
,
page
,
County Records.
NOW, THEREFORE, the Consentor consents to the above mentioned conveyance
from the Grantor to the Grantee and subordinates its interest in or lien upon the
real property hereinbefore described to the rights of the Grantee in and to said real
property by virtue of the above mentioned instrument.
IN WITNESS WHEREOF, the Consentor has caused this instrument to be executed
this
day of
, 19 .
(Corporation Name)
by
Title
SEAL
Attest:
Secretary
ACKNOWLEDGMENT
(1) Insert type of document (trust deed, mortgage, and so forth).
(2) Show deed, mortgage, or delete line as appropriate.
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
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Page 8 of 17
21.34 - Outstanding Rights. Curative documents must be recorded if the
outstanding right was recorded. Unless they conform to standard formats or have
been previously approved, all curative documents should be referred to the Regional
Office prior to signing or recording as the case may require.
1. Possessory Interests of Tenants, Lessees, and Squatters. Persons other
than the owner may be in possession under a recorded agreement, an unrecorded
agreement, or without an agreement or any kind.
Unrecorded interests may be cured by obtaining a consent worded somewhat as
follows:
I (or we) hereby consent to the granting of a road right-of-way by
(Landowner)
to the United States of America by the said Grantor and
occupied by me (or us) as a
(lessee, tenant, or other)
.
(Date)
(Signature)
(Date)
(Signature)
If the person or persons are in possession under a recorded agreement, use the
Consent Agreement shown as exhibit 02.
2. Easements. If the easement obtained by the Forest Service encroaches
upon or crosses a Bonneville Power Administration (BPA) easement, a letter similar
to exhibit 01 should be sent to the BPA notifying them of our easement. A copy of
the letter will be included in the title packet.
All other utility easements require a Consent Agreement. The format in exhibit 02
should normally be used; however, some utilities prefer to write their own. When it
is necessary to move existing utilities, the arrangements should be included in the
consent agreement.
Prior easements for roads must be subordinated so the Forest Service can exercise
control over all traffic using the road. For this purpose the Consent and
Subordination Agreement (FSH 5409.17 section 21.32) should be used. To provide
the easement holder with a continued right to use the road, the following paragraph
should be inserted immediately before the paragraph beginning "NOW,
THEREFORE:"
WHEREAS, the Consentor, having a present right to use the road, reserves
the right to continue to exercise the right to use said road, or segment
thereof, subject to compliance with traffic control regulations and rules as
provided in 36 CFR 261.12, and the bearing of road maintenance costs
proportionate to use as provided in 36 CFR 212.7(d).
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EFFECTIVE 10/15/91
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Page 9 of 17
If the prior easement only crosses the Forest Service easement, subordination may
not be required and the Consent Agreement (exhibit 02) could be used.
When the prior easement is to the BLM, a transfer of jurisdiction under Section V-A
of the BLM-FS Interagency Right-of-Way and Road Use Agreement (FSM 5465.1) is
required.
21.34 - Exhibit 01
National Forest
5460
(date)
Director, Division of Land Kahler Creek Rd #2712
Bonneville Power Administration Pack River Co., 10/3/78
P.O. Box 3621
Portland, OR 97208
Dear
:
The U.S. Department of Agriculture, Forest Service has acquired an easement for
the above named road which crosses your easements in section 8, T. 26 N., R. 17 E.,
W.M. in Chelan County, Washington.
The easements are identified as follows:
1. Recorded 12/17/47 as Auditor's No. 402521
2. Recorded 11/24/48 as Auditor's No. 415552
3. Recorded 5/9/69 as Auditor's No. 690354
The road is existing and no reconstruction is planned. For further information you
should contact this office.
Sincerely,
Forest Supervisor
National Forest
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EFFECTIVE 10/15/91
5409.17, 20
Page 10 of 17
21.34 - Exhibit 02
"CONSENT AGREEMENT"
WHEREAS,
, hereinafter called the "CONSENTOR," by virtue
of a
(1)
, dated
, 19
, and recorded
, 19
, in
Book
, at page
,
County records, has an interest in the
following described real property situated in
County, State of
, to wit:
WHEREAS, (place description here), has conveyed to the United States of America,
an easement for right-of-way purposes over and across said real property by virtue
of instrument dated
, 19
, and recorded
, 19
, in Book
, page ,
County Records.
NOW, THEREFORE, Consentor consents to the above mentioned conveyance
from
to the United States upon the real property hereinbefore described.
IN WITNESS WHEREOF, the Consentor has caused this instrument to be executed
this
day of
, 19
.
ACKNOWLEDGMENT
(1) Insert type of document (prior easement, lease, contract).
Forest Service consent to a third party to occupy portions of the acquired right-ofway should be given in the format of Exhibit 03.
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EFFECTIVE 10/15/91
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Page 11 of 17
21.34 - Exhibit 03
5460 (Case Designation)
CONSENT AGREEMENT
WHEREAS the United States of America, hereinafter called the Government, has
an interest in the real property hereinafter described by virtue of right-of-way
easement deed dated
, and recorded (date), in Volume
, page
, in the
records of
County, (State) and which easement traverses the following
described real property in the County of
, State of
to wit:
(place description here)
WHEREAS,
, hereinafter called (
(1)
), has need to construct,
operate, and maintain a (kind of improvement) and the necessary appurtenances
thereto within the Government's easement.
NOW THEREFORE, the Government consents to the construction, operation, and
maintenance of (kind of improvement) and appurtenances thereto within the
Government's easement, subject to the following conditions.
1. Construction will be in accordance with construction drawings submitted to and
on file with the Government in (
).
2. (
(1)
) shall repair all damage to National Forest roads caused
by (
) in the construction, operation, and maintenance of said
(kind of improvement) and appurtenances.
3. This agreement is executed with the express understanding that should future
reconstruction or maintenance of Government's road require the relocation of
the ( (kind of improvement) ) and appurtenances, such relocation will be done
by ( (1) ) at its expense within sixty (60) days following a written request to
relocate.
4. ( (1) ) shall indemnify and hold harmless the Government against all claims
or liabilities for damage to life or property arising from (
) acts or omissions
in the construction, operation, and maintenance of said (kind of improvement) and
appurtenances.
5. This Consent Agreement is issued on the condition that (
or will secure, permission from the landowner(s).
(1) Acronym or abbreviated name.
(1)
) has secured,
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EFFECTIVE 10/15/91
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Page 12 of 17
21.34 - -Exhibit 03--Continued
IN WITNESS WHEREOF, the Government, by the Forest
Supervisor,
National Forest, Pacific Northwest Region, Forest
Service, Department of Agriculture, has caused this instrument to be executed
this
day of
, 19 .
UNITED STATES OF AMERICA
Forest Supervisor
National Forest
Pacific Northwest Region
Forest Service
Department of Agriculture
ACKNOWLEDGMENT
STATE OF
COUNTY OF
)
) ss.
)
On this
day of
, 19 , before me the undersigned a Notary Public,
within and for said State, personally appeared
, Forest
Supervisor,
National Forest, Forest Service, Pacific Northwest
Region, Forest Service, Department of Agriculture, and that said instrument was
signed in behalf of the United States of America by its authority duly given and by
him delivered as and for its act and deed. And he did further acknowledge that he
executed said instrument as the free act and deed of the United States of America,
for the purposes and consideration therein mentioned and set forth, and I do hereby
certify.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year above written.
(Seal)
Notary Public in and for said
State of
Residing at
My Commission expires
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EFFECTIVE 10/15/91
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21.35 - Heirship and Probate Problems. Recommended action involving decedents'
estates:
1.
Assume a probate action has been started or will soon be started in the
same State where the land lies.
a. Obtain a preliminary certificate of title on the right-of-way.
b. Appraise the value of the right-of-way desired. If the appraised
value will not cover the legal costs to the owner of conveying title to the
Government, an estimate of such costs should be submitted to the
Regional Office.
c. If there is a will and it contains a power to convey without formal
proceedings through the probate court, and those holding the power and the
attorney for the estate agree with your terms, send a copy of the will into the
Regional Office with a report of the facts.
d. If there is no will or the will does not contain such a power, approach the
heirs and the attorney for the estate and determine whether the amount you
can offer is sufficient incentive for the attorney for the estate to proceed to
obtain the necessary probate authority. Assume the attorney for the estate
has legal authority. Also, get an estimate of the length of time involved and
submit the facts to the Regional Office.
2.
Assume that no probate is contemplated.
a. Obtain a preliminary certificate of title on the right-of-way.
b. Appraise the value of the right-of-way (see 1b above).
c. Determine the value of any Government improvements presently
contemplated or contemplated within the reasonably foreseeable future.
d. Start by determining generally from close friends, or the supposed heirs
themselves, the identity and addresses of the supposed heirs.
(1) Determine whether there is a will. If so, and you are able to do so, obtain
a copy. If you are refused permission to copy the will, inquire about the
identity of the heirs and devisees in the will.
(2) Continue your investigation until you have determined:
(a) Date and place of death of decedent.
(b) Name and address of surviving spouse of decedent.
(c) Names and addresses of all living children of decedent and their spouses.
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Page 14 of 17
(d) Names and addresses of the surviving spouses of any deceased children of
decedent.
(e) The names and addresses of any children of deceased children of the
decedent and their spouses.
e. Determine if the supposed heirs are in accord concerning the identity of
the heirs and will execute affidavits identifying the heirs.
f. Determine from the best sources available the value of the estate and
whether there are any unpaid debts of the estate. Identify the person or
persons possessing this information and state whether they will be willing to
execute affidavits. The decedent's lawyer, banker, or other business
consultant may have this information and, of course, the heirs themselves
can confirm the information.
g. Determine whether the estate has been reported to the State or Federal
taxing agency for a determination on the question of inheritance taxes. If
not, determine if there is any objection to doing this if it appears necessary.
h. Determine if the supposed heirs will convey for some consideration which
does not exceed the appraised value, or for reasonable legal costs if the
appraised value is negligible.
3.
Follow up action applying to either situation.
a. If no agreement can be reached with the heirs and their attorney, report
the facts to the Regional Office.
b. If the need for the road is urgent and it is likely that a declaration of
taking can be obtained materially in advance of the time necessary to proceed
through the estate, report the facts to the Regional Office.
c. If agreement can be reached with the heirs and their attorney as to the
value, the time needed for condemnation may be shortened. To stipulate, in
this sense, means to agree in writing on a specific item prior to court action.
22 - TITLE APPROVAL.
22.3 - Final Review and Title Approval.
22.31 - Final Title Assembly. The Forest Supervisor shall forward the original and
one copy of the Final Title Assembly to the Regional Forester. The transmittal
letter must include the following information:
- Miles of rawland right-of-way in easement (to nearest 1/100).
- Miles of existing roads in easement (to nearest 1/100).
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Page 15 of 17
- Planned date for advertising the contract or beginning force account
construction.
The Regional Forester shall retain the original title packet and return the copy
along with a copy of the title opinion to the Forest Supervisor after the title has
been approved by the Regional Attorney.
2. Final Title Evidence
b. Supplemental
(1) Use Form FS-5400-27. (To prepare see sec. 21.21.) List each outstanding
right or encumbrance revealed by the title evidence. Include a brief note
following each item explaining effects of the encumbrance on the easement
and whether it is considered administratively acceptable, waiver requested,
or deleted by the final title policy or endorsement. Wording such as the
following examples may be used:
(a) Exception No.
in Schedule B of the preliminary title policy. Mineral
rights outstanding in third parties. Little probability that parties will
exercise rights; see attached minerals statement prepared by Forest
Geologist. Administratively acceptable.
(b) Exception No.
in Schedule B of the preliminary title policy.
Telephone line easement crossing subject right-of-way. Consent Agreement
attached. Administratively acceptable.
(c) Exception No.
in Schedule B of preliminary title policy. Mortgage
Note. Recorded Consent and Subordination Agreement attached. Deleted by
Endorsement.
(d) Exception No.
on Endorsement dated
of subject easement. Administratively acceptable.
. Terms and conditions
(3) Include a certified coy of a resolution or statement from the proper
corporate person which shows that the official who signed the easement deed
to the United States was authorized to do so.
(4) A plat or map, if a right-of-way plat is not part of the conveyance. The
plat, or a pencil sketch if no plat is attached to the deed, should also show any
easements or physical evidence of prior rights-of-way. Some of these will be
cited as exceptions in Schedule B of the title report, others may not. Existing
roads, irrigation ditches, gravel pits, and power or telephone lines are
examples. Surface indications or markers of underground easement should
be shown also.
R6 SUPPLEMENT 5409.17-91-2
EFFECTIVE 10/15/91
The subject easement should be clearly identified by a symbol.
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EFFECTIVE 10/15/91
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Page 17 of 17
When rawland easements include a written description instead of a plat, the plat
map should closely portray the location of the easement across grantor's property.
The location of all rights-of-way and improvements shall be shown in proper
relationship with the right-of-way. This map need not be as precise or contain the
traverse information required in the Land Surveying guide EM-7150-3. The sketch
should be 4 inches = 1 mile scale or larger.
When existing roads are shown on 2 inches = 1 mile or larger planimetric map, a
piece cut from such a map may be used as part of the title packet. The road
segment included in the deed should be shown by an appropriate symbol. This will
serve to verify the description and can help to document the actual occupancy of the
easement. If a map is not available, a sketch may be prepared as for rawland
easements.
(5) Include a copy of the approved appraisal review or appraisal waiver. However,
this is not necessary for easements acquired under Cost-Share Agreements.