subleasing easements

foxtrapper · #1 02/12/08, 06:49 AM

Having an interesting time with the county subleasing a proxy road easement on my land. Never run across this one before. The county is leasing, for profit, underground access to my land. Haven't been able to find anything on the legality of this. Entertainingly, the various real estate lawyers in the area can't get us out of their offices fast enough as soon as we say what this is about.

Any of you had experience with someone subleasing an easement on your place?

MELOC · #2 02/12/08, 06:51 AM

have any more details for us?

RosewoodfarmVA · #3 02/12/08, 07:13 AM

Have you given them an easement for a county road? Usually a road easement comes with underground rights for telephone and other utilities.

fantasymaker · #4 02/12/08, 08:11 AM

I think we need to know a lot more about this.
Three reasons the lawyers may be acting like they are
1 Theres no money in it for them....(usually a layers prime motive)
2 Its their county and they have to get along with the county to do business so they dont want to PO someone.
3 You seem to be a nut

MELOC · #5 02/12/08, 08:29 AM

was that really necessary?

fantasymaker · #6 02/12/08, 08:50 AM

Nope
Just as your posts are not necessary.
But after years of dealing with lawyers those seem to be the reasons they run off poteintail clients. I thought they would be a help to the OP.
So do you want to help Foxtrapper or not?

Wolf mom · #7 02/12/08, 08:54 AM

Make sure you're talking to an attorney that specializes in real estate.

The best I've found is one that is/was the attorney for the local Real Estate Board. Not only do they come highly recommended, they really know their stuff - but it'll cost. Probably all you'll need is one meeting.

Come prepared with all doccuments, letters, etc. so not to waste time. If there's any questions, have the county spell it out in writing first. Make them do the work as they're the ones that want it. Always have everything in writing, nothing verbal.

What's a proxy road easement?

An easment is usually access over someone elses land. There should be legal paperwork for this. There are various kinds of easments.

A proxy is a document/person empowered to act for another. Who's the proxy here? Are you saying the county wants to be able to act for you???

PS if you go into a meeting with a hostile attitude towards lawyers in general, you may not get what you want. Use them, don't abuse them.

Mike in Ohio · #8 02/12/08, 09:53 AM

It's really going to depend on the wording of the easement. Without knowing that, any comments that anyone makes would be pure speculation.

Mike

edcopp · #9 02/12/08, 12:28 PM

Quote:

Originally Posted by foxtrapper

Having an interesting time with the county subleasing a proxy road easement on my land. Never run across this one before. The county is leasing, for profit, underground access to my land. Haven't been able to find anything on the legality of this. Entertainingly, the various real estate lawyers in the area can't get us out of their offices fast enough as soon as we say what this is about.

Any of you had experience with someone subleasing an easement on your place?

It would be a big help to know what state you are in.

foxtrapper · #10 02/12/08, 01:19 PM

State of Maryland. It's a proxy easement, that means it's adverse posession by the county. There is no written easement. It's an old road that the county has maintained for decades. I'm not disputing the county having the proxy easement of the roadway.

Town nearby wants to run a waterpipe along the road on my place. No problem, but there were some serious problems with the proposed written easement the town wanted.

The town went to the county and struck a bargan where they are now going to pay rent to the county for my land under the county road.

This is where I find two things of interest. One, can someone legally sublease an easement? Darned if I can find any straight information on this. Two, does a proxy easement for a road go down an indefinate depth? This one I can find some info on, but it's not clear. Overall, it seems a proxy easement entitles one to what they posess, and no more. In this case, that should be the road and the road bed, but not the ground below that.

So, do any of you have any experience with this? Specifically, the subleasing of an easement on your property by the easement holder to another entity? Like the power company subleasing their powerline easement to a gas company to run a pipeline. Things like that.

fantasymaker · #11 02/12/08, 02:46 PM

I think this could come under two headings
I an easment, in an easment you get what you bargain for and get in writing,in this case nothing except for,
2 Adverse posession in which case you are entitled to what you use and nothing more.
Now when you get into a court of law all sorts of weird things can happen but the 2 things above are the basics.
Your state may have developed some strange additions to the law You need to enquire.
Most roads where I am are a combination of things, originally the landowner allowed the public to use them now by right of long use(adverse possesion) they are publicly owned. Adverse posession does not apply to government so one they own it they always own it.
So as to the underground rights what has the county done with them? have they eevr dug up dirt in one place to take to another? (cuts and fiilsor borrow pits)
I think you are very much in the right here BUT Id bet you need a good lawyer to help you win it at least a bit better than the county's.

texican · #12 02/12/08, 10:59 PM

I'm not a lawyer.

If they have an easement, the county, they can put phone lines, water lines, any public utility type lines they want there.

How long have you owned the property? If you've just got it, you're pretty much stuck with the road, and the easements, and everything else the county wants to run under it.

If you've been there twenty years, it's too late now to challenge the prescriptive easement.

I had a similar situation... road on my land was a county road, then it wasn't... Begged and pleaded with two different adminstrations to maintain the road... would've given them any easement they wanted. They refused, and said it wasn't their problem, or their road. Okeydokey! Ten years later, they want to make it a county road, for real. I'd grown a pair by then, and after the original refusal, placed signs (on advice of a district judge) saying it was private property, not a county road, etc. I told em to take a hike. They placed signs on my boundary saying County Maintenance ends... Private Road.

If I'd've let them make it a public road, it would have been maintained, but I'd also have wild hair strangers driving in the middle of my place, and I wouldn't have any say so.... I don't like strangers, I don't like drive bys...

so, in my unlawerly opinion, you're stuck with it...

having an easement is like being a virgin... get an easement on you're place and you'll never get your virginity back... and usually you'll get more uses of that easement than you'd ever realize. I've got half a dozen easements on my place, some good, some bad... Whenever someone needs another one, I try to route them on top of, or next to, an existing one.

what agreement did you find unpalatable?

did you talk with the town? or scoff at them? If you wouldn't talk to them, they more'n likely went to the county, paid them, and let them fight....you...

If it's a water line, and a public utility, Imminent Domain will Strike You Down!!! I'd be happy if they put it under the road, or in the ditch. Sweet talk them and maybe they'd let you hook up to it in the future... Droughts happen, wells run dry, ponds shrivel... having piped water available wouldn't be the worst thing that happens.

good luck!

foxtrapper · #13 02/13/08, 07:54 AM

It's the subleasing of my property by another easement holder that I'm questioning. Particularly since the easement holder may not even have rights to what they are now subleasing for profit.

Like I said, it's a decades old road and the county absolutely has a proxy easement for this, and I'm not disputing it at all. I knew this when I bought the property nearly a decade ago. There's no surprise here at all. Not even regarding the road being where it's not supposed to be in some places.

Yes, the town originally came to me. I got the congratulation letter offering me $10 for half an acre, requiring me to remove at my expense the driveway, my fences, and all trees and shrubs. To say I wasn't exactly thrilled with this proposed offer and easement language would be an understatement. They bumped the offer up a bit monetarily, and said I could keep my fence, but added in a clause where they could run pipes anywhere on my property outside the easement. Driveway, trees and shrubs still had to go. There was also the matter of deep trenching right beside my shallow well that I wasn't exactly thrilled with, especially since the trench would be upstream from the water flow.

Now don't get me wrong. From the get-go I suggested placing the pipe under the road, right where it's going now. This is part of the area covered by the originally proposed easement by the town. They didn't want it under the road, they wanted it under my driveway.

Eminent domain isn't an issue here because the town now has a lease agreement with the county to my land under the roadbed that the county has a proxy easement to. As far as the town is concerned, the problem is solved. In many ways, I wouldn't mind an eminent domain case here, as I the land owner would get compensated for the taking, and could negotiate a far more reasonable easement than what was proposed. Particularly since this county is specifically prohibited from eminent domain taking and must go through the state legislature.

I've also got some experience with private utility easements as that's what I used to do back in the day I worked for Virginia Power. We had no rights to other companies utility easements, and other utilities had no rights to ours. I couldn't run a power line on a gas company easement, and visa versa. Only if there was a county public utilities easement could I assume the right to place a line. Otherwise, it was always a seperate easement for the power company. In fact we did get into some leasing issues. That was when the cable company illegally strung lines on our poles. We sued, won, and they either pulled their lines down or paid us for hanging them on our poles.

It's the subleasing of my property by another easement holder that I'm questioning. As well the for profit part of that lease agreement. Darn sweet deal for the county to lease my land to someone else for their profit, though I'm sure the money is pocket change. There's also the matter of whether the original easement holder (the county with the proxy road easement) even has legal rights to my land down below the roadbed.

Just can't find a case covering this sort of scenario to establish precident in any direction. Though I might be able to make the case via the seperate utility easements. Looking for people with any experience with a similar scenario, or a good source of such a scenario.

fantasymaker · #14 02/13/08, 08:38 AM

Foxtrapper I think you have it exactly right. LOL in fact it sounds like you know far more about the subject than most of those here. What I would look for is places where with a road easment already in place the landowner then sold seperate easements to water companies or other utilities. Id start looking in your own county.
Have you gone to the county and asked them why they think they have the right to sell your property? Id put it nicly but that is the question Id be asking.
How far across your property are we talking ? Right now a pipeline company is tring to get me to agree to a easement across my place ,to cross 4000 feet of property they are currently offereng just about $50,000 they are valueing may land at neary twice the market price for just the underground burial and maintenace rights

Mike in Ohio · #15 02/13/08, 08:55 AM

Foxtrapper,

You need a lawyer and a good one.

While the county may have an easement for the road through adverse possession, it is not clear that under those circumstances they have any rights to run anything else (pipes, electric, fiber) under the road or alongside it. The question of fact in this case is whether a road easement gained through adverse possession provides the equivalent of a general utility easement.

My hunch is that you will not find an answer in legislative law but rather it will take some research of case law.

At this point, the question is "how important is this issue to you"?

Mike

texican · #16 02/13/08, 10:27 AM

I'd have it put in the final agreement, whatever that might be, that no trees or shrubs would be destroyed, or trenching near my well. Have a certified water test done, preferably by them, monitored of course... in case damage is done later, you'll have a baseline quality. They can bore through and under your roadway (if it's paved). They do it here all the time.

In further negotiations, I'd recommend the linear foot costs for easements in your area... I got 7$/foot for a temp easement 7 years ago. Fantasymaker is getting probably ~12 to 15 for his, although it's a pipeline.

Unfortunately, it sounds like you either have to "lawyer up" or get steamrolled...