Other Platting Topics
2015 Professional Land Surveyor Examination Preparation and
Refresher Course
Instructor: Mark Harrison, PLS, BA – TRIAD ASSOCIATES
Easements and
Rights of way
According to the Definitions of Surveying Terms prepared by the ACSM and ASCE:
Easement: (A nonpossessing interest held by one person in land of another whereby the first
person is accorded partial use of such land for a specific purpose. An easement restricts but
does not abridge the rights of the fee owner to the use and enjoyment of his land.)
Right of Way: (Any strip or area of land, including surface, overhead or underground, granted
by deed or easement, for construction and maintenance according to the designated use, such
as for drainage and irrigation canals and ditches; electric power, telegraph and telephone lines;
gas, oil, water and other pipe lines; highways and other roadways, including right of portage;
sewers; flowage or impoundment of surface water; and tunnels.)
Blacks Law Dictionary lists:
Affirmative Easement (one where the servient estate must permit something to be done
thereon, as to pass over it, or to discharge water on it.)
Apparent Easement (one the existence of which appears form the construction or condition of
one of the tenements, so as to be capable of being seen or known on inspection.)
Easements and
Rights of Way
(Continued from Previous Slide)
Appurtenant Easement (an incorporeal right which is attached to a superior right and inheres in land
to which it is attached and is in the nature of a covenant running with the land.)
Discontinuing Easement (Discontinuous, non-continuous or non-apparent easements are those the
enjoyment of which can be had only by the interference of man, as a right of way or a right to draw
water.
Easement by Estoppel (Easement which is created when landlord voluntarily imposes apparent
servitude on his property and another person, acting reasonably, believes that servitude is permanent
and in reliance upon that belief does something that he would not have done otherwise or refrains from
doing something that he would have done otherwise.)
Easement by Necessity (Such arises by operation of law when land conveyed is completely shut off
from access to any road by land retained by grantor or by land of grantor and that of a stranger.)
Easement by Prescription (A mode of acquiring title to property by immemorial or long-continued
enjoyment, and refers to personal usage restricted to claimant and his ancestors or grantors.)
Easement in Gross (An easement in gross is not appurtenant to any estate in land or does not
belong to any person by virtue of ownership of estate in other land but is mere personal interest in or
right to use land of another; it is purely personal and usually ends with death of grantee.)
Easements and
Rights of Way
(Continued from Previous Slide)
Easement of Access (Right of ingress and egress to and from the premises of a lot owner to a
street appurtenant to the land of the lot owner.)
Easement of Convenience (One which increases the facility, comfort or convenience of the
enjoyment of the dominant estate or of some right connected with it.)
Easement of Natural Support (Easement which creates right of lateral support to land in its
natural condition entitling the holder thereof to have his land held in place form the sides by
neighboring land.)
Easement of Necessity (One in which the easement is indispensable to the enjoyment of the
dominant estate.)
Equitable Easements (The special easements created by derivation of ownership of adjacent
proprietors from a common source, with specific intentions as to buildings for certain purposes,
or with implied privileges in regard to certain uses, are sometime so called. A name frequently
applied to building restrictions in a deed.)
Easements and
Rights of Way
(Continued from Previous Slide)
Implied Easement (One which the law imposes by inferring the parties to a transaction
intended that result, although they did not express it.)
Intermittent Easement (One which is usable or used only at times and not continuously.)
Negative Easement (Those where the owner of the servient estate is prohibited from doing
something otherwise lawful upon his estate, because it will affect the dominant estate (as
interrupting the light and air from the latter by building on the former.))
Private or Public Easements (A private easement is one in which the enjoyment is restricted
to one or a few individuals, while a public easement is one the right to the enjoyment of which
is vested in the public generally or in an entire community; such as an easement of passage on
the public streets and highways or of navigation on a stream.)
Quasi Easement (An “easement”, in the proper sense of the word, can only exist in respect of
two adjoining pieces of land occupied by different persons, and can only impose a negative
duty on the owner of the servient tenement. Hence an obligation on the owner of land to repair
the fence between his and his neighbor’s land is not a true easement but is sometimes called a
“quasi easement”.)
Easements and
Rights of Way
(Continued from Previous Slide)
Reciprocal Negative Easement (If the owner of two or more lots, so situated as to bear the
relation, sells one with restrictions of benefit to the land retained, the servitude become mutual
and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden
to the owner of the lot sold; this being known as the doctrine of “reciprocal negative
easement”.)
Secondary Easement (One which is appurtenant to the primary or actual easement. Every
easement includes such “secondary easements”, that is, the right to do such things as are
necessary for the full enjoyment of the easement itself.)
Dedication (The appropriation of land, or an easement therein, by the owner, for the use of the
public and accepted for such use by or on behalf of the public. Such dedication may be
express where the appropriation is formally declared, or by implication arising by operation of
law from the owner’s conduct and the facts and circumstances of the case.) See RCW 58.17.020(3).
Statute of Frauds
And
Parole Agreements
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The transfer of land generally requires a written document, which is then recorded. This
is per a body of contract law called the Statute of Frauds. The Statute of Frauds
emerged in common law to protect against situations in which someone might make a
claim based merely on what was purportedly spoken. The idea is to prevent people
from making wanton, frivolous claims and instead "put it in writing."
End of story? No. Law is based as much, if not more so, upon the exception to rules,
as it is upon the rules themselves. Parole Agreement is one of those exceptions.
But of course there are sub-rules - which lawyers call "elements" - that need to be
satisfied in order to have a judge "rule" favorably for one claiming parole agreement.
Attempting to break free of all this complexity, here are the elements for Parole
Agreement:
There must be a "bona fide" dispute as to the location of the boundary
between neighboring real property owners;
That dispute must have been reconciled by mutual assent (i.e. "a meeting of the
minds") in which the parties come to recognize a "true boundary";
That "true boundary" must be a definite line which is clearly recognizable on the
ground; and
Statute of Frauds and
Parole Agreements
(Continued from Previous Slide)
• Occupancy up to that line must be maintained by both neighbors in such a
manner that "constructive notice" of the boundary line is
provided to successors in interest (i.e. subsequent purchasers, heirs,
assigns ...).
Perhaps most notably here, judges don't just allow a "he-said/she-said" type of
neighborhood rift to bound into their courtrooms. Instead, the parties both must
demonstrate acceptance of the boundary line.
Now, this seems rather similar to Mutual Recognition & Acquiescence. What's the
difference? Timing and Teamwork.
Parole Agreement, at least as far as I can tell, is a contemporaneous event in
which both neighbors identify a boundary line problem between themselves and
then they work to resolve it. In other words, they mark out their understanding on
the ground.
Statute of Frauds and
Parole Agreements
(Continued from Previous Slide)
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Mutual Recognition and Acquiescence, by contrast does not require that the two parties
"get their heads" together. Instead, it simply requires that a party coming to the situation
does not raise a fuss and in failing to do so loses his or her right to do so after passage
of the Statutory Period provided by Adverse Possession.
There is another angle to all of this of considerable note. It appears that the burden of
proof for Parole Agreement is a preponderance of the evidence standard. However, the
question of who has the burden of production practically speaking is the greater
challenge.
Here's why ... contract law favors the non-drafting party in the event of ambiguity. But
guess what? Here, there is no written document. By default, it would seem that the party
claiming parole agreement is the party that has to produce the evidence and carry then
carry the burden to prove it. And it is here, that a component of "he said/she said" will
often slip proceedings. And that will keep everyone involved up at night when dark and
on their toes when light.
Upshot, when you have an issue with your neighbor, do seek to resolve it peacefully.
Yet, also seek out a boundary dispute attorney to document your agreement and then
file it. The whole world is now on notice, and neither you, your neighbor, nor successors
in interest on either side of the real or imagined boundary line will curse at a later time.
Condominiums
Black’s Law Definition:
Condominium: A system of separate ownership of individual units in multiple-unit building. A
single real property parcel with all the unit owners having a right in common to use the common
elements with separate ownership confined to the individual units which are serially
designated. The condominium concept was not rooted in English common law and most
condominiums in the United States are formed in accordance with specific state enabling
statutes (in Washington, RCW 64.32 Horizontal Property Regimes Act (Condominiums), RCW
64.34 and 64.35).
A condominium is an estate in real property consisting of an undivided interest in common in a
portion of a parcel of real property together with a separate interest in space in a residential,
industrial or commercial building on such real property, such as an apartment, office or store.
A condominium may include in addition to a separate interest in other portions of such real
property. Such estate may, with respect to the duration of its enjoyment, be either (1) an estate
of inheritance or perpetual estate, (2) an estate for life or (3) an estate for years, such as a
leasehold or a subleasehold. (End Black’s Law Definition.)
A condominium has two parts, the Covenants, Conditions and Restrictions (CC&R’s), which
actually create the division of ownership and a Survey Map and Plans (SMAP), which is merely
a graphic depiction of the division. It shows both the area of ownership and the shared limited
common space.