clearing title for defects due to easements, encroachments...

Clearing Title for Defects Due to Easements,

Encroachments and Survey/Boundary DisputesIdentifying and Resolving Common Title Defects to Ensure Closing the Deal

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TUESDAY, JANUARY 29, 2019

Presenting a live 90-minute webinar with interactive Q&A

Sarah D. Cline, Attorney, Shulman Rogers Gandal Pordy & Ecker, Potomac, M.D.

John H. Hawthorne, Member, Protorae Law, Tysons, Va.

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Clearing Title for Defects Due to

Easements, Encroachments and

Survey/Boundary Disputes

Identifying and Resolving Common Title Defects to Ensure Closing of the Deal

Context is everything: which hat am I

wearing in this representation?

• Title agent

• Buyer’s counsel or seller’s counsel

• Lender’s counsel

• Counsel for an angry neighbor

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Litigation perspective

How do these disputes occur?

Some common themes:

• New neighbor

• New construction

• Changed use in property

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Survey/boundary disputes

• Whose survey controls?

• Adverse Possession/Prescription

• Elements and State Laws

• Ways to cure

• Declaratory Judgment

• Re-surveying

• Property Swap

8

Transactional perspective

• Buyer’s due diligence

• Seller’s obligation to convey clear title v. minimizing costs that cut into profits

• Lender’s concerns

• Entitlement concerns and third party consents

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Identifying Easement and Encroachment

Issues: ALTA/ACSM Surveys

• ALTA/ACSM Surveys are critical to discover issues on-site which may not be evidenced by the public records, particularly including easements, encroachments, and boundary disputes

• Ordering the survey – Table A items

• Surveying standards of care

• Measurement Standards

• Records research

• Field work

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Access

• Direct Access to public road

• Access via easement

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20

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Easements

• Privilege without profit

• Right to use but NOT right to possess

• Servient v. Dominant

• Express Easement

• Appurtenant v. In Gross21

Creation of the Easement

• Express Easement

• Implied Easement

• Easement by Necessity

• Prescriptive Easement

▫ Adverse

▫ Under Claim of Right

▫ Exclusive

▫ Continuous

▫ Uninterrupted

▫ Knowledge & Acquiescence22

Easement problems/concerns

• Blocking the Easement

• Gating the Easement

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2013

2017

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Indefinite and unclear easements

• USA CARTAGE v. Baer, 55 A.3d 510, 429 Md. 199 (2012).

• Burdette v. Brush Mountain Estates, LLC, 278 Va. 286 (2009) and Beach v. Turim, 2014 Va. LEXIS 27 (2014).

• Easement not described with particularity

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Encroachments

• Easement v. Encroachment

• Easement as an Encroachment

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Setback violations

• Local and State Law/Ordinance violations

• Federal law/regulatory agency violations: Army Corps of Engineers, Wetlands, TVA and other challenges

• Documentation/History is Key

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CC&Rs and Equitable Servitudes

• Easement v. License

• Easement as an equitable servitude

• Plain language of the CC&Rs

• Extinguishment or Abandonment of the Easement

• Effect on title to the real estate

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Easements and Encroachments

• Easement v. Encroachment

• Encroachment – Defined

• Easement as an Encroachment

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Various Equitable Servitudes

• Types of Equitable Servitudes

• Easement as an equitable servitude

• Easement v. License

• Easement v. Covenant

• Plain language of the CC&Rs

• Extinguishment or Abandonment of the Easement

• Effect on title to the real estate

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The Covenant

• Agreement between one or more parties that governs

how real property will be utilized

• Right to use but NOT a possessory interest

• Affirmative Obligations

• Negative Covenants

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Creation of the Covenant

• Restrictive Covenants

• Running With the Land

• Equitable Easements or Equitable Servitudes

• Enforcement of the Covenant

▫ Privity – Horizontal

▫ Privity – Vertical

▫ Intent

▫ Touches and Concerns

▫ In Writing

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Covenants, Conditions and

Restrictions (CC&R’s)

• Plain language of the CC&R’s

• Violation of the CC&R’s

• Enforcement of the CC&R’s

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The License

• Right to utilize but NO interest in the real property at

all

• Conditional Time and Use

• Creation of the License

▫ Express agreement

▫ Actions of the owner

• Practical Examples in the Commercial Context

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The Lease

• Right to possess AND utilize

• Interest in the real property conditioned upon

time and use

• Interest that can be superior to future

conveyance or liens

• Back to example of License v. Lease

• Creation of the Lease

▫ Oral v. Written

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Survey/boundary disputes

• Whose survey controls?

• How do these disputes occur?

• Adverse Possession/Prescription

• Elements and State Laws

• Ways to cure

• Declaratory Judgment

• Re-surveying

• Property Swap

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Sarah Cline gets deals done. A transactional attorney with significant experience in both

residential and commercial real estate deals, Sarah uses her litigation background to

anticipate potential problems in a real estate transaction, and to address them before they

cause undue delay or expense. While her legal practice encompasses a broad range of real

estate related areas, Sarah focuses her practice on the representation of buyers, sellers and

lenders in the acquisition, sale and financing of real estate.

A recognized leader in both the local and national legal communities, Sarah currently

serves on the Section Council for the Real Property Section of the Maryland State Bar

Association’s Young Lawyers Section, co-chairs the Bar Association of Montgomery

County’s Real Estate Law Section, and serves as Vice-Chair of the Single Family

Residential Committee in the American Bar Association’s Section of Real Property, Trusts

and Estates.

Sarah D. ClineShareholder

[email protected]

301-945-9245

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John H. [email protected]

703.942.6147

John H. Hawthorne is a partner at Protorae Law, PLLC, a business law firm located in Tysons Corner, Virginia.

He heads the firm’s real estate practice group. Mr. Hawthorne has been involved in the real estate field in various

capacities for the past sixteen years. He maintains an extensive transactional practice which includes matters

with a specific emphasis on sales and purchases of commercial real estate, distressed assets, leasing projects and

the development of real estate. Such matters have included the negotiation of complex purchase and sale

transactions involving historic buildings, restaurants, church properties, retail establishments, multi-party leasing

arrangements, and tenancy in common agreements. Mr. Hawthorne also represents clients in complex real estate

litigation matters. He has represented clients in state and federal courts and has particular experience with

easement and boundary line disputes, injunctions preventing the sale and encumbrance of real estate, complex

landlord-tenant disputes and other various contractual disputes involving the ownership of real estate. In addition

to his legal representation, Mr. Hawthorne has served as an adjunct lecturer for a graduate business program and

has been a presenter at continuing legal education classes. Mr. Hawthorne has also routinely hosted and presented

real estate seminars for local chambers and other various real estate groups. Mr. Hawthorne is an Area

Representative of the Virginia State Bar’s Real Estate Section and is a member of the Fairfax Bar Association.

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