Encroachments and Survey/Boundary Disputes Identifying and Resolving - - PowerPoint PPT Presentation

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

Clearing Title for Defects Due to Easements, Encroachments and Survey/Boundary Disputes

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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, JULY 28, 2016

Sarah D. Cline, Attorney, Shulman Rogers Gandal Pordy & Ecker, Potomac, M.D. Monica K. Gilroy, Managing Partner, Gilroy Bailey Trumble, Alpharetta, Ga. 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

Easements

• Privilege without profit
• Right to use but NOT right to possess
• Servient v. Dominant
• Express Easement
• Appurtenant v. In Gross

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Creation of the Easement

• Express Easement
• Implied Easement
• Easement by Necessity
• Prescriptive Easement

▫ Adverse ▫ Under Claim of Right ▫ Exclusive ▫ Continuous ▫ Uninterrupted ▫ Knowledge & Acquiescence

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Access

• Direct Access to public road
• Access via easement

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Easements and Encroachments

• Easement v. Encroachment
• Encroachment – Defined
• Easement as an Encroachment

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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

• Surveying standards of care
• Measurement Standards
• Records research
• Field work

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Additional Encroachments on the Easement

• Blocking the Easement
• Gating the Easement
• Structures on the Easement

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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, 287 Va. 223

(2014).

• Easement not described with particularity
• Marble Technologies, Inc. v. Mallon, 2015 Va.

LEXIS 74.

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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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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. Clients hire Sarah because her attentive, holistic approach to real estate transactions ensures smooth, efficient closings, and clients trust Sarah’s practical advice to resolve any issues that may arise. 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 state legal communities, Sarah currently serves as Treasurer of the Maryland State Bar Association’s Young Lawyers Section, and co-chairs the Bar Association of Montgomery County’s Real Estate Law Section.

Sarah D. Cline

scline@shulmanrogers.com 301-945-9245

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Monica K. Gilroy, a founding principal of Gilroy Bailey Trumble LLC, located in Atlanta, Georgia and is the firm managing partner. She has over 22 years of experience practicing law. She received her Bachelor of Arts in Political Science from the University of Wisconsin and a J.D. from the University of South Carolina School of Law. The focus of her national litigation practice includes all aspects of real estate litigation, including foreclosure and title disputes, broker and agent liability defense, mortgage fraud-related litigation and civil and commercial contract

• disputes. Ms. Gilroy has extensive lead counsel trial experience and frequently appears in all of the

state and federal courts of Georgia, including the state and federal appellate courts. Ms. Gilroy is the Chair of the Executive Committee of the Real Property Law Section of the State Bar of Georgia, the largest section of the Georgia State Bar. She speaks and teaches on a regular basis at the state and national level to attorneys, real estate professionals, property managers, and real- estate brokers and agents on litigation and real estate related topics. Ms. Gilroy is a nationally recognized attorney and holds an AV-peer review rating with Martindale Hubbell.

Monica K. Gilroy

Founding Principal

mkg@gilroyfirm.com 770.518.5515

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John H. Hawthorne

Partner

jhawthorne@protoraelaw.com 703.942.6147

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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
• ther 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.