Transcript Permanent Drainage Easement (PDE)

EASEMENTS
•Acquisition of partial interest
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 FRM7-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?