In an easement case, I was representing a family. They had a family cabin in the mountains since the1900’s, and in the sixties, they had lost a portion of their historic family farm. They lost three-quarters of their property to the bank. Their house was on the quarter piece they had retained. It is a wonderful piece of property, because it is surrounded by a national forest. They were on an island surrounded by national forests, and the three-quarters part of the property was in front, so they retained a quarter on the back of the property. They had lived in harmony with their neighbors for a long time.

There was a forest service road that went to the front of the property, and as soon as they got into the property, there was a road. The road forked to two houses. One was their house. About six years ago, a man had bought the three-quarters property. He lived in sufficient harmony with them until about three years ago when he got married. His new bride decided that she did not like her neighbors driving up and down their road, and in an effort to make his new bride happy, the man put a gate across it, and said stay out. Our clients said, “How do we get to our house?”, and the man said “that’s not my problem”. Therefore, most real estate cases will begin with a complaint being drafted, which, in this case, I drafted the complaint.

In the end, we went to mediation, and we limited the easement a bit, but we pretty much got them exactly what my clients wanted, and we were able to resolve some water rights issues favorably for my clients as well.

I had a boundary by acquiescence case, there was a town in Utah in 1980’s which had a big flood. A mud slide came and created a lake, so the entire town was under about one-hundred feet of water. It was the first national disaster where we had a lot of news footage about the area, and I was able to go through some news footage and all kinds of things. It was under water for quite a few months. Anyway, all the geological survey monuments (“monuments”) in the area had been buried by the mud when the lake was created. So all the monuments were off, but in recent years, the county had been doing dredge work, and they found some of the old monuments. They had calculated where the old monuments probably were and they had found most of the monuments.

The calculated monuments were off a few feet while the deeds prior to 1980’s were based on real monuments. None of the boundaries matched, there were overlaps, and some lots did not even exist. The United States Geological Survey has incredible records on monuments. Every monument placed, you can go back, and find the journal in which it was placed, and they will tell you, “…walked 150 feet, were unable to set a monument because of a cliff. Set monument 5 feet to the right by big pine tree.” Sometimes they are vague like where they say the big pine tree was, and you go there and there is not a pine tree for a hundred miles, but it was incredible to get back into some of those old geological journals, and figure out where the monuments were supposed to be set.

In addition, the railroad line had been disbanded, and that changed everything, because many of the calls on the deeds were for the railroad right of way, and the railroad right of way was now gone. The railroad monument was gone, the actual section monuments were gone, buried underwater, or had been recently found, and ripped off. There were all kinds of problems. I felt confident in my position, and I would have been able to win, but my client actually bought the quarter section next to the property we were fighting over. If I had won the lawsuit, it would have moved the property over to his new quarter section. Therefore, he would have the whole lot put onto his quarter section.

We ended up resolving it. The client took half of the lot. They split it right down the middle, and left it where it was, and my client took half of it, so his quarter section remained free. We ended up doing an informal mediation on that one, and did not go to trial. That one would have been fun to go to trial. There were just so many historical documents.

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Perhaps the biggest issue in a real estate transaction is dealing with expectations. The parties have differing expectations when they go into it, and that can be a wide range of things. For instance, you represent that you are selling nine acres. When the survey comes back, however, the actual property is eight and a half acres. There are different things that you can do to deal with that. You can file a quiet title, and see if you can get that other half acre, or maybe the price needs to be renegotiated based on not having that half acre.

Terms and timing are big things. Sometimes the other side ties to sneak terms in there that nobody agreed to. Timing is crucial. Sometimes the seller needs cash tomorrow, and the buyer needs financing. If the buyer expects the seller to finance them, it won’t work with a cash-out seller, or terms will have to drafted to make it acceptable to the seller. In the past recession, we saw this many times. If you, as a buyer, put something under contract you give yourself two years to do the due diligence and close. When the economy is bad, that is great, because you are contracted for nothing, and then put yourself two years out, and hope that the property comes up in value. If you put property under contract in 2015, and the seller gave you two years to close, the property has probably increased twenty to thirty percent difference in value. Great for the buyer. Not so much for the seller.

In such a case it is not uncommon that the seller wanted out of the contract because now, two years later, his property is worth a lot more. He wants that increased value. He starts looking for parts of the contract that the buyer has not followed, and get out of the contract so they can sell it for the increased price. I have seen that several times. It is the difference in expectations, but lots of litigation comes out of those sales documents. It is at the time of preparing and signing those documents that a real estate lawyer is needed. Properly drafted sales documents can greatly lessen later litigation.

What Is A Clear Title? How Can It Affect The Sale Or Purchase Of Property?

A clear marketable title means that the property is what you say it is. It does not have liens or other items clouding up your title, such as easements, notices of interest, or lis pendens. A title company creates a report that shows the issues that must be resolved prior to closing. It then gives an insurance policy to the lender regarding those issues. There are several things that a title insurance policy will not cover, however. Perhaps, when you look at the property, there might be a fence that goes down the middle of the property, and you need to know if somebody else has a claim to that. Adverse possession is a very real doctrine in Utah and if, after seven years, someone has paid the taxes, and has openly used the ground as hers, she could bring a lawsuit claiming the property was hers and would have a very good chance of winning.

Boundary By Acquiescence Case or Establishing An Easement Case?

A boundary by acquiescence case is a lawsuit to determine if a fence or other boundary that is not the surveyed property line but has been used as the boundary line for so long that the court will determine it should be the boundary line. To win this case, there has to be a recognized boundary between the neighboring landowners. Typically this boundary is a fence, but it could be a row of trees, a river, or it could be something that people would recognize as a boundary for a long period. The courts have held that a long period is defined as twenty years that you “acquiesced” that boundary to be the boundary.

For easements, there are several different doctrines, but the most common one that I see is probably a prescriptive easement. In a prescriptive easement, you need the use of an easement for a long period of time, which has been deemed twenty years, and your use has to be continuous in a pattern that is not sporadic. Therefore, you cannot use the road for a month, and then come back ten years later, and use the road for a month, and have a prescriptive easement survive. For instance, in a recent case we’ve had, one issue was that the road was used to drive into a summer cabin. Were they limited to just drive a car up there in the summer, even though the road was historically used as a farm a long time ago? A much better solution to the problem would have been to get a written and recorded easement to remove such issues.

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Obviously, the most easily established easement is a deeded easement. You have a deed that says you have a right to do something, and you can do that. Oftentimes the conflict comes when somebody says that you cannot. There is also easement by necessity, and a prescriptive easement. For a prescriptive easement, you must have a “use” that you were doing for twenty years. Oftentimes, we see this happen like this. Billy and John were neighbors, and John crossed Billy’s property to get to his own property which he has had for twenty years. Then Billy dies, and John goes to cross the property, and the new owner says, “No, you do not own this you do not own anything”. Then John has to file an action for a prescriptive easement to show that he was using it for all those years, and that he has the right to do so. That was actually one of my more complicated cases last year. It seemed to take a long time to finish, but we finally reached an agreement with mediation.

Society wants property to be used every now and again people will deed property that has no outside access. Therefore, creating a landlocked piece of property does society no good. Nobody can use it. It has no value to society if you cannot use it for farming, housing, or whatever the use. Society really frowns on that piece of property not being able to have access. They will have the elements for an easement by necessity, and one of the things we look at for that is the property that land locks said property, because every property comes off a larger piece of property. Oftentimes, the government granted sections, or quarter sections, and we look at the chain of title to see at what point the property became landlocked. So now we know where the access will be.

Essentially, what that says is that the bigger piece of property is meant to give access to the landlocked piece of property they just forgot. You will look at that, and be able to give them access. One element is that the landlocked parcel needs access. Another would be that Bill is the one that sold you this piece of property, and landlocked it, and now you are trying to get access through Jeff’s property which the law does not like. It likes to punish those that create their own burden, like Bill. The law does not want to burden others.

WHAT ROLE DOES AN ATTORNEY PLAY IN THE SALE OR PURCHASE OF PROPERTY?

I have a wide variety of roles in the sale or purchase of a property. For instance, the current business that I am selling, the seller who I represent, wants to know what deal the buyer has proposed. I am not inputting anything, I am just telling him these are the expectations, and this is what the contract states. This is the amount he will give you, this is what he expects, and then I will help the seller negotiate the deal, because it is not what the buyer, and the seller agreed on. We have another attorney for the buyer giving his interpretation on the deal.

The buyer’s attorney is adding a bunch of verbiage. I quoted this particular seller $200 to look at his particular contract, then I got a forty-page contract from the buyer, and I told my person, “I cannot look at this for $200. He said, “Go ahead and spend the time”, and asked if he needed a forty-page contract, and “I said we do not.” I can be involved in negotiations, which is one thing I, as an attorney, am very good at. Attorneys seem to have a unique perspective when it comes to negotiations. Sometimes you throw an easement in there, and it makes the property worth a little bit less, but maybe your buyer needs a little bit less, or maybe you need an easement.

The other thing that an attorney can do is look at zoning and due diligence work. Speaking with the city and see what zoning is possible, or what is not possible, and see if we can get zoning changed. Just looking at a title and making sure what they are representing and selling is what they are actually representing and selling. That is huge too. There are just so many things that an attorney can do. I am happy to do as minimal work as simply drafting deeds or documents to negotiating the whole deal and due diligence. It is a wide range of issues that I can handle for you.

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I deal with real estate cases. Often times it is neighbors that have a dispute. For example, it could be a boundary line dispute or an easement that they have used the driveway together for a long time since they were neighbors, and now all of a sudden you get a new owner, or the neighbors get mad at each other, and they put a gate across a driveway, or a boundary line. Oftentimes we do not have to litigate those cases; we put it into litigation posture, and then go to mediation. We can often resolve these issues outside of litigation, because they are incredibly expensive to litigate, and the value of the property is not that much.