Blog: R.E. Tales
Hey, not every place is pretty.
Abstract of Title
New York is called “an abstract state”. This does not mean our attentions are diverted, but rather that we typically convey title through the use of an Abstract of Title to establish what is called the “Chain of Title” (history of ownership). More common in the US now is the use of Title Insurance and a lot of the big firms that deal all over the US, make the incorrect assumption that Title Insurance is what we want here as well, so that’s what we get, whether we actually want it or not. Personally, I disagree with this, not that they listen to what I say. Either can be used to convey good title, but the insurance ends when I sell the property. With an abstract, all that needs to be done is have it updated then given to the next owner.
Once I get a Purchase Contract signed, the next step (assuming it is a cash sale) is to send the abstract out for updating. This means the seller has to deliver it to his attorney. If he can find it that is. So many can’t, and a frantic search ensues. After all, they haven’t looked at it or even seen it since they bought the place they are now selling. They will triumphantly produce the Deed. But we can get copies of that easily from County Clerk where they have been filed. Abstracts are not filed in New York and, until recently, not even copied. Some firms now provide digital copies, a huge improvement by my way of thinking. If your county files are converted to digital then the main reason abstracts are not filed disappears (lack of space - they get bulky). Some states have gone ahead have these routinely filed at the County Clerk’s. But not New York. You are responsible for it.
So you are in the middle of your frantic search and you realize you may not recognize it even if you found it. It may not say “Abstract of Title” on it. What does it look like? Most are on legal paper (8.5x14”) and have covers of colored somewhat heavier paper, stapled at the top. All but certainly, it will be fairly thick. I have seen them way over 100 pages. On the front is probably a tax map of the land. Inside will be all sorts of legal documents pertaining to the property: old deeds, wills, easements, various maps, deeds of neighboring properties which once may have been part of yours, foreclosure documents, mail receipts, mortgages, marriages and divorces information, tax searches, memorandums, copies of judgements, purchase contracts from the past, lis pendens (notice of a pending legal action), and certification of the abstract. If you can stand to wade through all this, it gives a legal history of the premises. Not everything mentioned above will be in each abstract - and there may be other documents someone once thought important to add.
Suppose you cannot find it at home, what now? Find out which attorney represented you when you purchased the property. He may have it in his files. Or check with the bank if you had a mortgage. Sometimes they have them. I have an abstract here of a place I sold 20 years ago. It had been at my lawyer’s who has since retired. When he gave me all my files, I found it in there. I called the current owner and told him I had it, but it should be in his records, not mine. He thanked me and probably promptly forgot about it. If he ever decides to sell, he is going to be frantic. Unless he remembers I have it, it will cost him an un-needed bundle and some lost time to recreate it.
Now how did it come to be in my files? I am not sure but when I sold ti, I carried his mortgage. That would explain how it came to be there, even though I was not in the habit of holding onto the abstract in such cases. There ware quite a few over the years, but this one, for some reason, was the only one my lawyer had retained. Or it could have simply been mis-filed. There are abstracts of property I own that are missing. I wonder where they ended up in? I keep such things in my safe and no where else.
Another lawyer had a flood in his office and lost all his older files. Not only his but the ones his father had before him, 2 generations worth. When all those folks need their abstracts, there will probably be a hundred grand spent creating them. Typically we go back 40 years in our abstract searches, so some of the abstracts, say those from 50 years ago, will be interesting perhaps, but not terribly useful.
After the abstract is updated, it is sent to the buyer’s attorney, who reads through it to give his opinion as to who he feels the legal owner is. If he feels someone else may have a legal interest in the property, then he’ll let the sellers attorney know about it and then they will have to do whatever is necessary to rectify this. We had one case recently where the title over time had passed through 4 different lawyers in various sales, each of whom was satisfied that the title was good. Not one ever challenged it. Then it got to the 5th lawyer who found something he didn’t like. It seems way back when there were like 17 heirs and when it was sold; one was feuding with the others and failed to sign off. As luck would have it, he was still alive. And still mad. This all happened so long ago that the Statute of Limitations had long passed, meaning he couldn’t have done anything about it if he had wanted (you have so many years to enforce your rights and if you fail to do this, you lose any rights you thought you had). He’d long ago lost his rights to complain. and, to be fair to him, he wasn’t complaining, not making any waves for subsequent owners. But he wasn’t signing anything either. The buyer’s lawyer would not let the closing take place until another lawyer, the owner of a title company, agreed to insure the title. Everyone knew there was no problem that had any chance of being informed, but the buyer’s lawyer didn’t want his client in any difficulty in case another lawyer surfaced who did not understand that the sorehead’s rights had long been extinguished.
ROW = Right of Way, the legal right of one party to enter lands of another in order to access their own land. It is a form of easement. And is typically used when a parcel is landlocked, as it saves you having to own a helicopter or a huge pogo stick to get to your land. But it is also used in other circumstances.
One I am working with now is a great example, a 118 acre tract with lots of road frontage on a paved year-round road. Only a creek parallels the road, too closely. To build between it and the road. You have easy access - if you don’t mind wading. And on the other side it’s steep. There used to be a Town road through the property, coming downhill to the paved road. It is now legally abandoned in that area and the bridge is long gone. There is a seasonal road in the back that goes right to the property. It used to lead down to the bridge, but it also veers off along the side. Except the last bit of this road before our 118 acres begins is now also private land and though it looks good, the Town no longer maintains it. You cannot tell on the land where it ends legally, but definitely the owner of the 118 acres does not have the right to use it without permission. It’s a “so near, yet so far” case.
With the road frontage there, you will not get any help from the State. You have ample access, just not by car. But take heart, we discovered a survey map and on it is, yes, a Right of Way, one that lead up a nice driveway off the paved road and then a short distance off it on in to the property. It is 20’ wide, not really enough by modern terms, but it’s perfectly legal and ample to drive a car in and even pass another. You just can’t turn a fire engine around on it, which is what some Towns want in new ROWs. Along with the right to pass here is normally the right to improve ti to whatever standard you may feel it warrants. This assumes your improvement does not interfere with the landowner's use. You can come and go whenever you want, but you can’t park in it in case the actual owner needs to use it. He has the right to use it too; after all, it’s his land. He just can’t keep you from also using it.
I went to the County records and checked and, yes, it is clearly established in all the deeds, the owner’s and his neighbor’s. Most often a ROW that you have will not show in your own deed, only in your neighbor’s. So when I am asked to research ROW’s that’s where I first look, in the adjoining landowner’s deeds. Why is it this way? Because the ROW affects what the neighbor can do or not do with his land. It does not affect your land as it is not your land the ROW is on. But it sure makes a difference to you, having it. In this particular case, the neighbors have different attitudes about it. The husband readily acknowledges the existence of the ROW and said the buyer could do with it as he wished, only don’t trespass even an inch. OK, fair enough. He’s got that right. The wife takes a different approach: use it and we’ll find a lawyer. I cannot see how she could win, but if she sued, the new owner would have to pay to defend himself. And of course all this concerns him a great deal. And I can see it using marital strife next door. We’ll see how that plays out. Hopefully cooler heads will prevail.
I said it was clearly established. By this, I mean it’s existence. The wording on its location is on the vague side. Yes, it clearly shows on the survey map, but no surveyed coordinates or distances are shown. The map refers to a barbed wire fence, one which we can’t locate. Maybe with the snow gone, it will reappear. Wouldn’t that be nice? Or maybe someone removed it. The survey is not so old that it is likely to have rusted and rotted away. There is another potential solution. Approach the neighbor, ask him where he thinks it goes, maybe offer to move it somewhat if he prefers that. He should appreciate the courtesy of that offer. The two owners can do anything they both agree to. If they both want to move the ROW, they can.Then formalize it legally.
There are also a surprising number of ROWs that are not in any official papers. There may have been a legally-binding document drawn up that was never filed. Or, the right to use another’s land may have been handled informally between two friendly neighbor for many years. When a property is being sold or transferred, a sharp lawyer will make sure this gets formalized to avoid future difficulty. After all, the next neighbor might not be so friendly. There are times, analogous to Adverse Possession, whereby a landowner can get an “Easement by Prescription”. In such a case, one party may have historically been using a certain way in. It does not have to be only for access; other possibilities I have seen include getting water from a well on another’s land, gathering firewood, and even hunting there. Do it long enough and eventually someone acquires a legal right to do what he has been doing right along, especially if the actual landowner does not exert his legal rights or does nothing to stop him during this period.
There is place for sale right now with a nice driveway, except no one can park on it. It is also a ROW for another party, who lives further back in. But he has his own separate drive and his own road frontage, but for some reason he also has a ROW up the driveway. And he uses both ways in, probably to assert his rights. And he’s nice about it. He even keeps it cleared of snow and nicely graveled. So they drive in, park on the lawn, and everyone stays happy.
There is also something called an “Easement by Necessity”. A landlocked parcel to which there was no ROW would be a good example. Some years back, the State came out with a ruling or law that allowed owners of land-locked property to force access where none existed before. At the time this passed, I asked several attorneys how it worked - and not a one of them knew. But I could tell the attorneys sure wished they wouldn’t ever have to deal with such a case. Since in the 30 years since a situation like this has not come up with me, so I still don’t know. In the case with the 118 acres that was first mentioned, this would not be appropriate to employ because the owner has complete legal access from anywhere along the paved road. The word “access”is defined broadly and does not mean “vehicle access”. This would be ridiculous for people who own islands.
We once had a man ask us to list his woodland. This was located in the back of his property; fields were in front of it. He wanted to keep those. I pointed out that unless one of his neighbors wanted to buy it, a new owner would not have the legal right to visit what he bought. Without an easement or ROW, the land was worthless and that’s exactly how someone else would value it. He considered this and came back to us later on with a legal ROW that he had an attorney draw up. It followed the boundary, which was a good idea as it was now clearly defined. But it was only 15’ wide and there were several right angle turns along the property lines. Hey, a car cannot turn a right angle in 15’. But he didn’t want to give any more width. Then I noticed that one boundary crossed a small lake. So even if you got your car to that point, unless it was amphibious, it still couldn’t reach the woodlot. We declined the listing. That’s not salable, except to someone whose land adjoins.
Easements and ROWs may have expiration dates, though usually they don’t expire. When they don’t, they are called Appurtenant, they run with the land. To get rid of one of these, there are two things you can do. One is to simply buy the property from whoever who has the ROW through your land. If the owner can be persuaded to sell, that is. Owning both, you can now get it off the deeds. Or you could pay the owner enough to make it worth his while to relinquish the ROW. Note that there are counties where this last suggestion won’t work as they no longer allow new parcels to be landlocked, to exist without access. But there are instances where a party enjoys more than one ROW; then it could work.
I once had the opportunity to buy 80 acres at a bargain price. Nice land too. Checking out the maps, I noticed it completely surrounded another parcel of land. Visual inspection of the smaller parcel showed that someone was actively doing something there with bulldozers and rocks. Later I heard a fellow had bought it and planned to build a very nice home there. He already had in a quite nice drive I did more checking on legal documents and could not find any mention of a ROW. How did he think he could get there? Then we found two buyers, one for each side of the drive. So I wrote to this fellow, offering him a ROW if he’d survey the drive so I could use it for a legal description for my buyers. After 2 or 3 weeks, he called me and said it had been surveyed already but he didn’t need any ROW from me. “Are you sure?”, I asked. “Once it’s sold, I can’t get you in.” He was sure. So I shrugged my shoulders. If he wanted it that way and was happy, then so was I.
A few days before the closing, he called me again. “Ahm, about that right of way… can I still get it?” Well, now all the papers were drawn up and I’d have to pay to get them changed. I replied, “Yes - if he paid for the changes and got them done immediately.” He was only too glad to pay. Later on, I learned that when he bought his land, his lawyer was supposed to take care of the ROW, but had neglected to do it and now it was way too late. We owned it, not the old owner. Were we that kind of people we could have sold it to him for an outrageous sum. He was over a barrel and had no choice. We had him by the short hairs. But we weren’t that kind of people; I want folks to speak well of me and say they’d always been treated fairly. If I hadn’t brought this to his attention, he would have never known he didn’t have the ROW he thought he had. And then the new owners would have him by the short hairs and he’d either have a very expensive home or they would have had extremely cheap land to add if they wished.
Some blogs are designed to amuse; others can be an immense help. All are interesting.
After 40 years, I've learned a lot, & acquired unforgettable experiences. Follow these long enough and you'll eventually get the whole book. (Names probably changed, for obvious reasons.)