When it comes to building telecom infrastructure in right-of-way (ROW) easements, there are multiple things you must work through before the shovel can touch the dirt. You must navigate through appraisals, relocation, property management, leasing, and more.

Unfortunately, there is very little devoted to the issue of the lowly easement and the rights we acquire from private property owners and franchise rights from governmental agencies. From a telecommunications viewpoint, you need some basic definitions of important terms that will help you speak the language of ROW. This article will help get you started in the right way. (Or is it right-of-way?)

FAQ: What exactly is the right right-of-way?
1. It is the correct easement form, properly executed and notarized by all of the legal owners of interest in the property.
2. The description of the property on the easement form is exactly as that
described in the deed.
3. The location of the easement on the property is adequately described and leaves no room for interpretation by others.
4. The grantors of the easement were fully informed of what would be placed within its boundaries.
5. The easement is not a blanket easement. A blanket easement allows the easement holder to place their facilities anyplace on the property they wish. This kind of easement is an unreasonable burden on the land.
6. The easement is properly recorded in the recorder’s office in the county in which the property is located.
7. Your plant is installed within the boundaries of the easement.

Now that we have a working definition, let’s address each one of the above items and see what they really mean and how they impact underground construction projects in the telecom world.

FAQ: What do you mean by “Legal Owners”?
How do you know who has an interest in the property? Some might think that it is a simple matter of checking the deed or the tax assessor’s records. This couldn’t be farther from the truth.

Here are some reasons why:
• Deeds do not have to be recorded until the current owner(s) sell the property.
• Other transactions could have occurred after the current deed was recorded.
• There could be a contract for deed in motion and not recorded. Some juris-dictions, not all, require that the contract be recorded.
• If the property is leased when you acquire your easement, the lessee can keep you from exercising your easement rights under some circumstances if the lessee doesn’t sign a release.
• If there is a life estate on the property, do you know who must sign the easement?

The tax records are always a good place to start looking for ownership; however, that is all that they can really be used for. In most jurisdictions the party paying the taxes is the name that appears in the records. It is not necessarily the owner(s) name
that appears.

Is there one or more mortgages/trust deeds on the property? When do you take subordination from the lender(s)? Do you realize that without a subordination your easement could be made invalid if the lender takes the property back due to default by the property owner(s)? The lender has as much to say about the property as the current owner(s). Sometimes this information comes as a shock to some ROW practitioners.

FAQ: Why does the correct property description matter?
The correct description of the piece of land that you want an easement on is critical. A land description is unique to that particular parcel, to the exclusion of all other parcels of land in the world. An incorrect description may invalidate the easement taken.

The following are the most common ways to describe real property:
• Metes and Bounds (measurements and boundaries).
• The rectangular method (section, township, and range).
• Subdivision (lot and sometimes block).

FAQ: How do we know the exact location of the easement?
The easement may be described in many different ways. The most common is metes and bounds, which usually requires a survey.

Next is a single, two-, or three-way call, which may sometimes be accomplished without a survey if the property boundaries are clearly evident.

Sometimes an exhibit “A” is used, which is an accurate pictorial of the area encumbered.

FAQ: What is meant by “Owner(s) Fully Informed”?
We have all experienced buyers remorse at one time or another. Imagine how a property owner feels after he or she has granted an easement to the local utility/agency for a buried line and one small above-ground device. On the day of construction the owner is confronted with the largest Caterpillar tractor ever made instead of a light duty Ditch Witch trencher, and a crane lowers a huge manhole into place instead of the small device. The easement document may allow for such equipment, but imagine how the property owner feels. This can happen, and if it does, someone’s telephone is going to start ringing.

FAQ: How do we handle trespassing complaints?
Frequently an attorney is consulted - which can be very expensive (even in-house attorneys cross charge the expense to your department in most companies/agencies now) - on right-of-way matters when it could easily have been taken care of by someone properly trained in such matters.

In fact, a frequent problem for many utilities/agencies is the following scenario: a property owner calls to complain about a pole on their property that they never saw before. They are absentee owners and recently decided to build their retirement home on the property. They can't find anything in their title report or deed that indicates that your utility/agency has any rights to be there. What are your options?

Try to find some sort of easement or permit in your files. None can be found. Then you must weigh the cost of moving the plant versus hiring an attorney to defend your presence on the property. Without some documentation, the attorney is likely to say that it is very difficult to defend in court what appears to be trespass.

Perhaps the pole was placed with verbal permission years ago. It probably was because you know that your company/agency has never trespassed. You do some investigating and discover the pole was placed there 22 years ago, but the current owners bought the land 6 years ago. You wonder why they never noticed the pole before. However, when they bought the property they really hadn't thought about where they would ultimately build their home until now. The pole is in the middle of the proposed house, and they want you to remove it at your expense.

One tactic to use is "Prescriptive Rights". Prescriptive rights can be invoked if your plant is clearly visible (open and notorious), in continuous use for the statutory time (5 to 30 years depending on which state you are in), under a claim of right, and it must be adverse to the property owner. The use of prescriptive rights, if it is taken to court and an action to quiet title is filed, and all of the conditions for obtaining a prescriptive easement have been met, the court can actually grant the easement. The exception to this is in New York State where utilities are prohibited from exercising prescriptive rights.

Sometimes, the inclination is to just move your plant, at your company's/agency's expense, without any fight or negotiation. It is more cost-effective in the long run to have a staff or engineering person, well versed in ROW matters, than it is to refer it to an attorney every time a question arises about easements or rights-of-way.

Remember: when asking property owners for an easement, put yourself in their place. Would you grant the easement if this were your property?
 

About the Author
Jerry Moran is VP, NMI Management & Training Services. He has more than 40 years of experience in land and easement acquisition. For more information, email Jerry at nmi@flash.net, call 510.530.9342, or visit www.nmitraining.com.

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