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Unrecorded Easement - Title Correct / Not shown on County Parcel Map

Discussion in 'Easements & Right of Way Law' started by KSuponch, Mar 7, 2020.

  1. KSuponch

    KSuponch Law Topic Starter New Member

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    My husband and I own a property that has 2 additional parcels that are recorded (it is publicly recorded as well) on our title as parcel 2 and parcel 3, for the purpose of right away / ingress and egress. Back in 1980, an easement had been agreed upon and granted between my husband’s grandparents (they were the owners at the time) and the people who purchased land that wrapped around our property along the north and west property lines which would have landlocked the property. However, the county parcel map was never updated to show the 30ft easement from parcel 1's west property line (being parcel 2) and from parcel 1's north property line (being parcel 3).

    Last year, we got into a battle with the county when we wanted to install a ground mount solar unit, because we have a small building that is within 20' rear setback, on the west property line of parcel 1. When the permit application was submitted, they wanted us to demolish or relocate the building. This building was also built back in the early 1950's and is in use as my home office and art studio. It has never been added on too and the only modifications are standard maintenance with exception to electrical being run to it in 1986 (that was permitted through the county). The county eventually issued the permit, after 7 months of back and forth, when we provided our title showing the additionally allocated parcels as sufficient evidence that the allocated space was not in conflict with the setback requirements by property line and also because the solar was not directly related to the building in question. We now have our solar system up and running which we are thankful for, but they stated we would have to submit a variance easement request to get it documented on the county map before they would allow any other permitted work. They claim the variance easement was never completed. Well guess what? We were just informed that our septic system is going to need to be replaced in the coming year because it’s failing (it’s 70 years old, so that was not a shocker).

    I wanted to get the ball rolling on the variance and have investigated what’s required, let me just say, it’s extremely costly. It’ll be at least $10k and there is no guarantee after you’ve spent the time, effort, and money into doing this, that they will grant it. I’d rather tear the building down and use that money to add on to our home, as our main building is very small and is the reason we use the little building question. However, I want what is clearly defined on our title shown on the counties parcel map. I feel they somehow dropped the ball when the land around the north and west property lines were sold and that the easement had to have been negotiated and approved by the county. Cause how else could the title have been updated to reflect the additional 30ft? They couldn’t have acquired that property without the easement being in place and approved because of the landlock it would have created.

    So, to sum up my questions:
    1. Is the documented title easement, being for right of way / ingress and egress, ok to consider a non-violation of the rear setback rule?
    2. Is it legal for them to force the burden of correcting the undocumented easement on their assessor’s parcel map simply because they failed to do it when they sold the land around ours?
    3. We do not have the easement documents, only our title. We have the original title / bill of sale from 1948 which clearly states just the original parcel. We also have the updated title from 1980 which clearly shows the adjustment for the additional 30ft on the north and west property lines. All parties involved are deceased except for one which is the lady who owns the other property, and she acted like she knew nothing about this. Isn’t our publicly recorded title enough evidence that the easement took place and was approved for the county to move forward with updating their drawings?
    Other fact’s I learned in investigating:
    1. Before the sale of the property, the APM showed our north and west property lines as “open boundary” with the little zig-zag (kind of like a heartbeat symbol) which indicated they were not hard set north and west property line due to the surrounding are being open.
    2. The building was built in the early 50’s. I have state cataloged aerial photographic evidence that the structure existed prior to 1961. Our counties code has a very interesting line:
    Sec. L-V 2.2 Section 114: Violations (add the following)
    A. Maintenance of any building, structure or building service equipment, which was unlawful at the time it was constructed or installed, if constructed or installed after January 1, 1962, shall constitute a continuing violation of this Code and the technical codes.​

    I feel like this is the “grandfathered” clause, in which the building cannot constitute a violation since it was built prior to 01/01/1962. No one at the county office could explain the meaning of this code to me.​

    Sorry for the wordiness, but I wanted to delve out as much information as possible. This has become a real headache and it seems ludicrous that we are being put through it. The main takeaway is, I want to keep this structure and be able to have permitted work done on the property so we can take care of our home.

    Any help or suggestions would be massively appreciated. Thank you!

    Nevada County, CA
     
  2. army judge

    army judge Super Moderator

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    A discussion site is of scant (or any) value in an effort to resolve COMPLEX legal matters.

    Before you do anything, you need to retain and engage a good real estate attorney located somewhere in your county.

    FREE legal information could end up being costly.

    Scanning WebMD to learn about rashes on your leg can be useful, but doesn't preempt a visit to your GP or dermatologist.

    Good luck.
     
    KSuponch likes this.
  3. adjusterjack

    adjusterjack Super Moderator

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    Nor does WebMD teach you how to perform brain surgery on yourself which is more of an equivalent to your issues than a rash.

    :D
     
    KSuponch likes this.
  4. welkin

    welkin Member

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    I first have to agree that you are going to need a good attorney to get you through this. The cost of a variance application is expensive in all cases but 10K seems very excessive because of rear yard setback violation.

    And if the building in question is nonconforming to current zoning but retains its nonconforming use (because of when it was built), you should not be required to apply for a variance for the building so that you can have other work done on the property.

    Let's start at the beginning.

    The bolded above sounds like you have an easement on those parcels and you do not actually own them. You appear to be the dominant estate and the owner of parcels 2 and 3 is a servient estate. If that is the case, you realize that you don't own that property. You are only allowed to use that property for the purpose of ingress and egress. The easement was recorded in 1980 and the county parcel maps were not updated to reflect the grant of the easement.

    That really has no impact on the fact that the easement was granted. Counties don't update maps every time there is a change property status. It is very expensive to change the maps and perhaps this occurs every 7 to 10 years before GIS mapping. Now GIS mapping is less expensive than redrawing maps by hand. But if the recorded easement was never placed on the county maps, it got left out. But again, the easement was recorded so it doesn't matter if it is on the map or not.


    This entire paragraph I find confusing. The way I read it, the building is in the rear-yard setback of your property and they wanted you to demolish or relocate the building. Then you say you submitted your title showing the additionally allocated parcels to show that the building was not in conflict with the setback requirements. That would be contrary to the fact that those parcels are an easement. You can't use a granted easement to satisfy zoning requirements on a setback .

    A variance to a zoning requirement is not an easement. It is permission to be at variance with the zoning laws. If you want to build something that would violate a setback and you apply for a variance and are granted that variance, you can build. But you get no easement. It's all on your land.

    Easements are not approved by the county. They are between land owners and the counties only record them. Your husband's grandparents were granted an easement. Nothing changes that. But again, an easement is not ownership in the land. It only gives you a right to use it for a specific purpose and you can't use it to satisfy a zoning requirement (except for ingress and egress so a property is not landlocked).

    I don't believe you understand the laws as you think you do. You need to consult with an attorney before you spend money on a variance application. And I'm not sure you are getting the full understanding of the county. If the building is a non-conforming use (or not conforming in dimension) then you shouldn't need a variance to put in a septic system (unless the placement of the septic system would require a variance on your property).
     
    Last edited: Mar 8, 2020
    KSuponch likes this.
  5. KSuponch

    KSuponch Law Topic Starter New Member

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    Thank you for the candid response. We do plan on obtaining an attorney but also thought it wouldn't hurt to see what professionals would say on a discussion site.
     
  6. KSuponch

    KSuponch Law Topic Starter New Member

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    Ha ha! Great, glad to hear our equivalent is brain surgery, lol.
     
  7. KSuponch

    KSuponch Law Topic Starter New Member

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    Thank you for the detailed response and you are correct, I don't understand the laws as much as I would like too. In part to the county and how they word the requirements for a variance and easements (as if they are one in the same) and also because of how they were suddenly okay with granting the permit for the solar after we provided our title, but wouldn't for any other future permit requests for any else on the property. But, I think the only help we get before we do anything, is going to be from an attorney. Thanks again, I sincerely appreciate the information.
     
  8. flyingron

    flyingron Active Member

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    It's rare that private easements ever show up on plats or maps. Often, utility or drainage easements are platted as the were set up at subdivision time. It takes some digging to find recorded easements that varies by jurisdiction. There are companies that specialize in doing this and who will even issue insurance warrantying their work. Absent such insurance to resort to, a land-use attorney will be necessary to unravel this (and of course, he'll do the proper search for such easements as a matter of course).
     
  9. KSuponch

    KSuponch Law Topic Starter New Member

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    Got it, thanks for the information.
     

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