Can a landowner refuse to provide an easement or right-of-way? The Answer is Yes.
A landowner must consent in writing before the creation of a new easement or right-of-way. If a landowner refuses to grant consent, an easement or right-of-way may still be obtained and created if it is based upon a decision of the Surface Rights Board, expropriation, or a judge’s order if it is determined that the easement would be in the greater public good.
Saturday, May 9, 2009
Easements & Rights of Way
What is an easement or right-of-way?
An easement or right-of-way is an agreement that confers on an individual, company or municipality the right to use a landowner’s property in some way. While these agreements grant rights, they also have the effect of partially restricting an owner’s use of the affected portions of land.
For example, if you own property and a utility company has a main gas line passing under your land, it is likely that they will have a registered easement that will guarantee them access to the line and restrict uses or activities that would hamper such access or cause safety concerns.
Easements and rights-of-way are usually recorded in the appropriate County Clerk's Office. They remain with the land and are automatically transferred from one owner to another as the land is sold. Easements remain on the title until the holder of the easement relinquishes the rights.
An easement or right-of-way usually describes a particular portion of property, and although not visible on the ground, provides an area of access to the holder of the easement or right-of-way.
Easements and rights-of-way are very common. Most urban and many rural properties are subject to easement or right-of-way agreements.
An easement or right-of-way is an agreement that confers on an individual, company or municipality the right to use a landowner’s property in some way. While these agreements grant rights, they also have the effect of partially restricting an owner’s use of the affected portions of land.
For example, if you own property and a utility company has a main gas line passing under your land, it is likely that they will have a registered easement that will guarantee them access to the line and restrict uses or activities that would hamper such access or cause safety concerns.
Easements and rights-of-way are usually recorded in the appropriate County Clerk's Office. They remain with the land and are automatically transferred from one owner to another as the land is sold. Easements remain on the title until the holder of the easement relinquishes the rights.
An easement or right-of-way usually describes a particular portion of property, and although not visible on the ground, provides an area of access to the holder of the easement or right-of-way.
Easements and rights-of-way are very common. Most urban and many rural properties are subject to easement or right-of-way agreements.
What are Municipal Searches and How do they affect my property?
Municipal searches are informational searches that encompass Building Department and Fire Department records. Information about the abutting street is also provided.
A Building department search will show the Certificates of Occupancy and Building permits that are currently associated with the subject premises. Certificates of Occupancy and Building Permits are proof that the local building codes and zoning ordinances have been complied with. They will also show the characteristics of the premises, 2 bedroom, 1 bathroom, etc. This is important to both the buyer and seller of the premises. If a lending institution is involved in the transaction, these searches are also key. Be advised that "Open" building permits that are more than a year old will constitute a violation and postpone a closing until the permit is converted to a certificate of occupancy of any other appropriate designation. For instance, there is an open permit for a finished basement. The basement is finsihed but the premises was never inspected by the building inspector. Therefor, no certificate has been issued and thus no proof of compliance with the local building ordinances. This open permit constitutes a violation.
The Fire Department records are also reviewed and provide information that would show if the premises is subject to any fire violations, such as a lack of smoke detectors or CO2 detectors.
The information that a street search provides will show whether or not the abutting street is public or private.
Why are these searches important? Lets look at a hypothetical - Suppose you were purchasing a home or owned a home and wanted to refinance the existing mortgage. Your lender will require an appraisal of the subject premises. An appraiser will inspect the premises and consult the tax records and perhaps the building department records as aforementioned. These records will give the appraiser the vital details of the premises and his inspection will verify those findings. The title company will be asked to perform a title search and prepared a title commitment based on the items found of record in the County Clerk's Office. The title company will be asked to also provide a municipal search. This search will mimic the building and fire department records.
The appraisal and building department records will be reviewed by the lender and compared to verify that the subject premises is what it is supposed to be. If there is a discrepancy between the appraisal and the building department records, this is where it must be disclosed.
A title insurance policy does not address any issue regarding zoning ordinances or building codes. Municipal Searches are simply not insured. Therefor, all interested parties must make certain that any discrepancy be dealt with prior to closing. As always, consult your attorney about any issue involving your real estate transaction.
A Building department search will show the Certificates of Occupancy and Building permits that are currently associated with the subject premises. Certificates of Occupancy and Building Permits are proof that the local building codes and zoning ordinances have been complied with. They will also show the characteristics of the premises, 2 bedroom, 1 bathroom, etc. This is important to both the buyer and seller of the premises. If a lending institution is involved in the transaction, these searches are also key. Be advised that "Open" building permits that are more than a year old will constitute a violation and postpone a closing until the permit is converted to a certificate of occupancy of any other appropriate designation. For instance, there is an open permit for a finished basement. The basement is finsihed but the premises was never inspected by the building inspector. Therefor, no certificate has been issued and thus no proof of compliance with the local building ordinances. This open permit constitutes a violation.
The Fire Department records are also reviewed and provide information that would show if the premises is subject to any fire violations, such as a lack of smoke detectors or CO2 detectors.
The information that a street search provides will show whether or not the abutting street is public or private.
Why are these searches important? Lets look at a hypothetical - Suppose you were purchasing a home or owned a home and wanted to refinance the existing mortgage. Your lender will require an appraisal of the subject premises. An appraiser will inspect the premises and consult the tax records and perhaps the building department records as aforementioned. These records will give the appraiser the vital details of the premises and his inspection will verify those findings. The title company will be asked to perform a title search and prepared a title commitment based on the items found of record in the County Clerk's Office. The title company will be asked to also provide a municipal search. This search will mimic the building and fire department records.
The appraisal and building department records will be reviewed by the lender and compared to verify that the subject premises is what it is supposed to be. If there is a discrepancy between the appraisal and the building department records, this is where it must be disclosed.
A title insurance policy does not address any issue regarding zoning ordinances or building codes. Municipal Searches are simply not insured. Therefor, all interested parties must make certain that any discrepancy be dealt with prior to closing. As always, consult your attorney about any issue involving your real estate transaction.
Tuesday, May 5, 2009
How does title insurance protect me?
Title Insurance is unique when compared to many other types of insurance available. Title Insurance takes proactive steps to insure that your real estate ownership is unencumbered. So since you are not covered for future events that may impact your title - it is the past events that you do not want to effect your good and marketable title. Certain title defects can prohibit you from selling, mortgaging or even giving away your property. So you can see why it is important to understand what coverage is provided.
These are but a few of the protections provided by your Title Insurance Policy
Forged deeds, mortgages, satisfactions or releases
Deed by a person who is mentally incompetent
Deed by a minor that can be disavowed
Deed from a corporation, unauthorized under corporate bylaws or given under a false corporate resolution
Deed from partnership that is not authorized under it's partnership agreement
Claims resulting from the use of an alias or fictitious name style by a predecessor in title
Deed following a foreclosure where the proper procedures were not followed
Falsified Power of Attorney
Undisclosed Divorce
Undisclosed Liens recorded in the County Clerk's Office
Undisclosed Mortgages recorded in the County Clerk's Office
Improperly indexed documents in the County Clerk's Office
Property that is land locked, having no access to a public road
Prior decedents estate interests
Improper legal descriptions
Undisclosed recorded easements, covenants, restrictions, agreements
Prior Real Estate Tax Liens
Again, these are just some of the coverages that the title insurance policy provides. The title commitment that your attorney will receive prior to closing will detail your coverages. Any items that need to be cleared before closing will also be disclosed in the commitment.
These are but a few of the protections provided by your Title Insurance Policy
Forged deeds, mortgages, satisfactions or releases
Deed by a person who is mentally incompetent
Deed by a minor that can be disavowed
Deed from a corporation, unauthorized under corporate bylaws or given under a false corporate resolution
Deed from partnership that is not authorized under it's partnership agreement
Claims resulting from the use of an alias or fictitious name style by a predecessor in title
Deed following a foreclosure where the proper procedures were not followed
Falsified Power of Attorney
Undisclosed Divorce
Undisclosed Liens recorded in the County Clerk's Office
Undisclosed Mortgages recorded in the County Clerk's Office
Improperly indexed documents in the County Clerk's Office
Property that is land locked, having no access to a public road
Prior decedents estate interests
Improper legal descriptions
Undisclosed recorded easements, covenants, restrictions, agreements
Prior Real Estate Tax Liens
Again, these are just some of the coverages that the title insurance policy provides. The title commitment that your attorney will receive prior to closing will detail your coverages. Any items that need to be cleared before closing will also be disclosed in the commitment.
Monday, May 4, 2009
What Are Riparian Rights?
When a premises to be insured abuts any body of water, Riparian Rights can be a serious consideration. Anyone purchasing such a property should be familiar with the way a title insurance company will address these matters.
The following is considered whenever any body of water abuts, crosses or lies within the boundaries of the premises to be insured.
No title is insured to any land lying below the present or any former high water line of said body of water.
Policy Excepts the riparian rights and easements of others to and over said body of water, but policy does not insure any riparian rights or easements in favor of the owner of the premises to be insured.
Policy Excepts the riparian rights of others to the natural flow and drainage of any creeks or streams which cross the described premises, but the policy does not insure that the owner of the premises herein has any right to drain through or otherwise use said body of water across adjacent land.
Basically, title insurance does not insure your rights from the shore and beyond. That does not mean that you do not have the same rights as others, it just means title does not insure those rights.
In addition to the aforementioned, when Navigable Waterways are abutting the premises, such as canal, river, bay or ocean the following is also considered.
Subject to the rights of the public to navigate the waters of said canal, etc.
Policy Excepts the right of the United States Government to establish harbor, bulkheads or pierlines or to change or alter any such existing lines and to remove or compel the removal of fill and improvements thereon, including buildings and structures, from land now or formerly lying below the high water mark of said canal, etc. without compensation to the insured.
Policy Excepts the rights of the United States Government, the State of New York and/or any of their departments or agencies to regulate and control the use of the piers, bulkheads, land under water and land adjacent thereto.
Policy Excepts the rights of the County of -------, Town of -------, and/or any of their departments or agencies to regulate and control the use of the piers, bulkheads, lands under water and lands adjacent thereto.
And when the Atlantic Ocean abuts the subject premises the following is considered.
Rights and Easements of the public to land lying between the high water mark of the Atlantic Ocean and the edge of sand dunes for the purpose of bathing, boating, fishing, passage and other activities.
The following is considered whenever any body of water abuts, crosses or lies within the boundaries of the premises to be insured.
No title is insured to any land lying below the present or any former high water line of said body of water.
Policy Excepts the riparian rights and easements of others to and over said body of water, but policy does not insure any riparian rights or easements in favor of the owner of the premises to be insured.
Policy Excepts the riparian rights of others to the natural flow and drainage of any creeks or streams which cross the described premises, but the policy does not insure that the owner of the premises herein has any right to drain through or otherwise use said body of water across adjacent land.
Basically, title insurance does not insure your rights from the shore and beyond. That does not mean that you do not have the same rights as others, it just means title does not insure those rights.
In addition to the aforementioned, when Navigable Waterways are abutting the premises, such as canal, river, bay or ocean the following is also considered.
Subject to the rights of the public to navigate the waters of said canal, etc.
Policy Excepts the right of the United States Government to establish harbor, bulkheads or pierlines or to change or alter any such existing lines and to remove or compel the removal of fill and improvements thereon, including buildings and structures, from land now or formerly lying below the high water mark of said canal, etc. without compensation to the insured.
Policy Excepts the rights of the United States Government, the State of New York and/or any of their departments or agencies to regulate and control the use of the piers, bulkheads, land under water and land adjacent thereto.
Policy Excepts the rights of the County of -------, Town of -------, and/or any of their departments or agencies to regulate and control the use of the piers, bulkheads, lands under water and lands adjacent thereto.
And when the Atlantic Ocean abuts the subject premises the following is considered.
Rights and Easements of the public to land lying between the high water mark of the Atlantic Ocean and the edge of sand dunes for the purpose of bathing, boating, fishing, passage and other activities.
What is Title insurance?
Title Insurance is an important part of just about every real estate closing. When you purchase real property you must know that you have good and marketable title to the land. Title insurance provides this level of comfort.
The land records in the county where the property is located are searched back for 60 years or more to observe the chain of title or ownership. The legal division in that same county would also be searched for various liens that are either general to the owner or specific in nature to the premises in question. All statutory lien periods are observed, so past owners are also searched for these items.
Once the searches are complete, a title commitment is issued showing any defects in the chain of title, which would affect your good and marketable title. Any liens against the premises would also be cited in the title report. If the premises in question has no defects your title report will show that as well.
Real estate taxes are also searched. A detailed report of all current or delinquent taxes assessed to the premises will be shown. A title company is responsible to make sure that all past taxes are paid at closing. You should take title with only the current taxes open of record.
Title insurance does not cover zoning issues of any kind. Each municipality has standard codes which apply to each parcel of real estate. Items such as Certificates of Occupancy and Building Permits can be found at the appropriate Town Hall. Fire Department records are also searched for potential violations. A title company as standard practice and at the insistance of a designated lender, will provide these municipal searches. They are provided "FOR INFORMATION ONLY" and the title company will assume NO LIABILITY for these searches.
Easements, Covenants, Restrictions, Etc. that are shown in the public land records will be shown in the title report. These items affect the use and occupany of your premises and thus must be carefully considered.
So, What does title insurance insure? It insures the subject property as to it's unique boundary lines and that the premises is free from any encumbrances or liens not shown in the policy and which would have been disclosed in the public record. Title insurance insures your lender that their lien is in first position and that no prior lien would have priority over the First Mortgage.
Always consult your attorney and make sure your title report is carefully reviewed prior to the closing so that you understand this very important coverage for your most coveted possession - YOUR HOME!
The land records in the county where the property is located are searched back for 60 years or more to observe the chain of title or ownership. The legal division in that same county would also be searched for various liens that are either general to the owner or specific in nature to the premises in question. All statutory lien periods are observed, so past owners are also searched for these items.
Once the searches are complete, a title commitment is issued showing any defects in the chain of title, which would affect your good and marketable title. Any liens against the premises would also be cited in the title report. If the premises in question has no defects your title report will show that as well.
Real estate taxes are also searched. A detailed report of all current or delinquent taxes assessed to the premises will be shown. A title company is responsible to make sure that all past taxes are paid at closing. You should take title with only the current taxes open of record.
Title insurance does not cover zoning issues of any kind. Each municipality has standard codes which apply to each parcel of real estate. Items such as Certificates of Occupancy and Building Permits can be found at the appropriate Town Hall. Fire Department records are also searched for potential violations. A title company as standard practice and at the insistance of a designated lender, will provide these municipal searches. They are provided "FOR INFORMATION ONLY" and the title company will assume NO LIABILITY for these searches.
Easements, Covenants, Restrictions, Etc. that are shown in the public land records will be shown in the title report. These items affect the use and occupany of your premises and thus must be carefully considered.
So, What does title insurance insure? It insures the subject property as to it's unique boundary lines and that the premises is free from any encumbrances or liens not shown in the policy and which would have been disclosed in the public record. Title insurance insures your lender that their lien is in first position and that no prior lien would have priority over the First Mortgage.
Always consult your attorney and make sure your title report is carefully reviewed prior to the closing so that you understand this very important coverage for your most coveted possession - YOUR HOME!
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