Sunday, December 05, 2004

Dedication stating: "60 FT EASEMENT RESERVED FOR FUTURE ROAD" is ambiguous!

Every once in a while, you get the feeling that there MUST be more going on than meets the eye. But in an opinion reviewing a grant of summary judgment, that's usually not the case.

In this opinion, released last week, the 5th DCA ruled that the words "reserved for future road" on a street easement depicted plat are ambiguous as to whether the easement so indicated was intended for public dedication in a plat that dedicated all easements in the plat to the public. It held that a trial court improperly granted summary judgment in favor of Orange County in an inverse condemnation case claiming a right to compensation when the County actually used the reserved easement for expanding a road.

Let's get this right: it's not the developer claiming a taking under Dolan or Lucas . It's later landowners, who bought with title commitments indicating that the easements were burdens on the property claiming that there were, in fact, no easements for road purposes granted by the plat and accepted by the County.

OK, so just noting "street easement" would have been more clear - though I'm guessing that the surveyor/engineer described it as "reserved for future" to show that the developer wasn't being required to improve the street prior to dedication and acceptance. But I don't see the language as ambiguous.

And let's be clear - an area on a plat marked "easement reserved for future road" on a plat that dedicated all the easements to the public doesn't create any anticipation that it would only be used for a private road, or that it wouldn't be and wasn't accepted as part of the general acceptance under any of the dedication/acceptance cases that I've ever read.

There's some discussion that the term "reserved" might have been to keep a reverter - but the court rejected that interpretation. So if the easement wasn't to revert if not used, and it was accepted, where's the ambiguity?

There may be more to what's going on than what's in the opinion, but I simply fail to see what possible factual scenario could call the clear legal implication of these words into question; certainly none of the facts related in the opinion. I think the dissent in this case got it right.

What's more, I suspect that this opinion will trigger a whole spate of really obnoxious levels of review of plats by the legal departments of local governments, slowing up and adding unnecessary expense to what's already a process burdened down by many technicalities.

PRACTICE TIP: for all of use who review and/or prepare plats, be sure that not only is the dedication and acceptance language clear, but mark all areas to be dedicated clearly as easements/dedications along with the purpose - and avoid surplussage if at all possible.

No comments:

Post a Comment