EASEMENTS Acquisition of partial interest Easement An interest

EASEMENTS • Acquisition of partial interest

Easement - “An interest in real property that conveys use, but not ownership, of a portion of an owner's property. Access or right of way easements may be acquired by private parties or public utilities. Governments dedicate conservation, open space, and preservation easements. ” - as defined by the Dictionary of Real Estate Appraisal – 4 th Edition.

Does USPAP require a definition of the rights being appraised? Std Rule 1 -2(e) Identify the characteristics of the property that are relevant to the type and definition of value and intended use of the appraisal, including: (ii) The real property interest to be valued

SCOPE OF WORK RULE DISCLOSURE OBLIGATIONS The report must contain sufficient information to allow intended users to understand the scope of work performed.

CONCLUSION Easements, i. e. the partial interests or rights being acquired, must be clearly stated and understood to produce a credible report.

EASEMENTS Physical Characteristics • Surface • Subsurface • Above Surface Duration • Permanent • Temporary

TYPICAL R/W EASEMENTS • Construction (usually temporary) • Drainage (permanent and/or temporary) • Utility (usually permanent) • Slope (permanent or temporary) • Sidewalk (usually permanent)

DEFINING the EASEMENTS (rights being acquired)

Temporary Construction Easement - “Provides work area for the temporary use of land outside normal right of way that is necessary for construction of the project. The use of this land will be for a specified time period and the purpose of the TCE must be clearly shown on the plans. Permanent grading changes are not normally performed on areas acquired as TCE. ” - as defined by the West Virginia Department of Transportation – Division of Highways – Design Directive (DD-301 Right of Way Plans) - dated April 1, 2004.

In this case the purpose of the TCE is not clearly shown on the ROW plans as required by the WV DOT. For this appraisal, the purpose of the TCE is to tie the grade of the proposed ROW to the existing grade at the subject property. The TCE will allow for construction and for maneuvering of equipment for the duration of the TCE. The rights being acquired by the WVDOT are for the full use and enjoyment of the property for the duration of the temporary easement - the rights remaining to the fee owner consist of the right to cross the property for reasonable access purposes so long as the use of the easement is not impeded.

Permanent Drainage Easement (PDE) – “Said Permanent Drainage easement in perpetuity is for the installation and maintenance of drainage facilities, and for all purposes for which the DEPARTMENT is authorized by law to subject same. The Department and its agents or assigns shall have the right to construct and maintain in a proper manner in, upon and through said premises a drainage facility with all necessary pipes, poles and appurtenances, together with the right at all times to enter said premises for the purpose of inspecting said drainage facility and making all necessary repairs and alterations thereon; together with the right to cut away and keep clear of said drainage facility all trees and other obstructions that may in any way endanger or interfere with the proper maintenance and operation of the same with the right at all times of ingress, egress and regress. It is understood and agreed that the Department shall have the right to construct and maintain the cut and/or fill slopes in the above-described permanent drainage easement area(s). It is further understood and agreed that Permanent Drainage shall be used by the Department for additional working area during the above described project. ” - as defined by the North Carolina Department of Transportation form FRM 7 -N, Titled “Drainage Easement”

In this case, the purpose of the PDE is not clearly shown on the ROW plans. For this appraisal, it is assumed that the purpose of the PDE is to facilitate drainage. The PDE will allow for construction of drainage improvements and for maneuvering of equipment within the easement into perpetuity. In our opinion, the rights being acquired by the NCDOT are for the full use and enjoyment of the property for drainage purposes - the rights remaining to the fee owner consist of the right to use the property for density calculation and land use matters and the liability of continuing to pay real property taxes, however the owner cannot physically use the property in any manner other than crossing over it as long drainage flow is not impeded in any way.

SIDEWALK AND UTILITY EASEMENT The City of Charlotte has not provided a definition for a sidewalk and utility easement. As a result we have defined it as follows: A taking which provides an area for the construction and maintaining of a sidewalk and public utilities. It is permanent in nature and grants the City of Charlotte the rights for the full use and enjoyment of the property for maintaining the sidewalk and any utilities installed. The rights remaining to the fee owner consist of the right to cross the property for access purposes so long as the use of the easement is not impeded.

The City of Charlotte v. Anthony R. Combs, et. al.

The City Appraiser: “…that he had not appraised the entire property before and after the TCE, based on his experience the TCE’s do not adversely affect the remainder of the property. ”

Property Owners Appraiser: “…believing that the TCE had a material impact on the entirety of the Combs’ property, not just the 330 square feet subject to the TCE…”

“As for the Combs’ property, although it was acknowledged that certain improvements had been damaged, …his valuation did not include any assessment of whether the remainder of the Combs’ property was affected in any other respect by the temporary taking.

“… because (the appraiser) based his valuation of the TCE on his experience that such temporary takings do not affect the remainder of the condemnee’s property rather than an actual assessment that the Combs’ property outside the TCE was affected, his method of proof lacked sufficient reliability. ”

RECENT ISSUES

TERM of the TCE • States (DOT) requesting the term of the temporary easement not be stated in the appraisal report • Does this violate USPAP? • Implement the JER (Law or Regulation? )

DESIGN/BUILD?