Property Owner Responsibility:

Property Owner Responsibility:
Know your property, as well as your rights!

What is Property Owner Responsibility?

Each and every property owner has certain rights and responsibilities… as well as there being things of which we should be aware. The responsibility of owning a property doesn’t stop at the owner paying taxes once a year and the rights of the property owner doesn’t end at allowing who is allowed on his property or who is not. Some of the things that the property owner should know, for example, includes such things as knowing exactly where their property is located and being familiar with the various “property laws and ordinances” for the areas that affect the property in question. The ‘property laws’ that affect the property owner might be found in federal or state statutes, county ordinances or local and zoning laws. This paper will discuss some of the things that the responsible property owner should know or do.

A Few Basics

First let’s discuss a few of the basic things that every property owner should know.

The Right of Access

The ‘Right-of-Access’ is something that isn’t always found easily when search for the various laws and ordinances, in fact a person may find little or nothing on the subject with in the laws they research… however the “Right-of-Access” is still an idea that many laws and courts support.

The “Right-of-Access’ stipulations may include, but is not necessarily limited to, the legal right to walk (or drive vehicles) from the public roads and highways to the land they own — as well as the ability to turn or park safely. When a person has no legal access to their property this creates the situation where the land is ‘landlocked’, many areas have laws forbidding properties that are bought or sold to be landlocked. In other areas the states do allow ‘landlocked’ properties to be bought and sold. It is the property owner’s responsibility to insure that any property they own or want to buy has legal access through either a thing known as an “Easement” (such as a private street) or a “Public Right-of-Way”.

What is an “Easement”?

An “Easement” is a right to use another person’s real estate for a specific purpose. The most common type of easement is the right to travel over another person’s land. In addition, property owners commonly grant easements for the placement of utility poles, utility trenches, water lines or sewer lines. The property owner of a parcel of land that is subject to an easement is claimed as being “burdened” by the easement, due to he or she not being allowed to interfere with its use.
For example, if the deed to a property permits a utility company to place it’s utilities in an area crossing the property; the property owner cannot do anything to block the easement of place permanent structures upon the easement. On the other hand, the utility company cannot do anything that exceeds the scope of her easement, such as building outside of the designated easement.
An easement usually has a width of 3 or 5 feet, however certain easements can be 15 foot wide or greater.

What is the `Public Right-of-Way’?

The “Public Right-of-Way”, also known as ROW (sometimes R/W) or Right-of-Way, is most often defined as a type of “Easement”, but the true definition is actually closer to it being “a piece of land ‘dedicated’ for a specific purpose or set of purposes”. It is the area of land that includes Sidewalks, Curb & Gutter, Street or Alley, and sometimes even the landscaped area between the Curb & Gutter and the Sidewalk or the Sidewalk and your Property Line.

The ROW is a public thoroughfare that allows people or vehicles the “right” to travel through an area. It is a part of something called “the Public Domain”. A typical definition for the term “Public Right-Of-Way” in the local ordinances may read similar to the following:

RIGHT-OF-WAY, PUBLIC: An area of land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved or dedicated to the City for public purposes including, but not limited to, street, highway, alley, public utility pedestrian walkway, bikeway, or drainage. Within public rights-of-way, the City coordinates the locations of public or private improvements, underground or overhead; including electricity, gas, steam, communication, telecommunications, data transmission, cable TV, water, storm drainage, sewage, sidewalks, landscaping, traffic signals, streetlights, flood control, pedestrian, roadway purposes, etc. owned and operated by any person, firm, company, corporation, municipal department, or board duly authorized by federal, state, or municipal regulations.

The property owner may be allowed to plant vegetation within the R/W when safety isn’t compromised due to the items affecting your ability to clearly see the road and have traffic and pedestrians clearly see you. Usually fencing is not permitted in the public right-of-way, but some areas do allow (or overlook) temporary fencing (such as chain link fences) to exist within the R/W. The property owner usually is responsible for:

1. Keeping the ROW adjacent to their property clear of obstructions.
2. Keeping the ROW adjacent to their property cut and clear of weeds and garbage.
3. Not planting or placing permanent objects within the ROW.
4. Not planting or placing objects that block the view.

A quick and easy way to describe the difference between an Easement and a Public Right-of-Way is to say that an easement is an agreement that allows others to utilize a part your property, whereas the Public Right-of-Way transfers a piece of the original property into the public domain. In short, the property owner still owns the land within the easement, but they don’t retain ownership of the land within the right-of-way.

Setbacks

In many areas there are Zoning Ordinances concerning building of structures on the property, these things are called “Setbacks”. The setback is basically an invisible line offset a certain distance from the property line. This line dictates where structures can and cannot be placed. Side yard setbacks, for example, are usually 5 or 10 feet from the property line, whereas front and back yard setbacks are a greater distance from the property lines. Some areas allow for a Zero Line Setback, which is where the governing agency allows structures to be built on the property line.

Property Lines

It would be relatively safe to assume that everyone, or most people, know what a property line is… or at least heard the term. A Property Line is an invisible line that stretches between two points that denotes where one property ends and another begins. No one owns the property line, yet it can be argued that both owners of adjacent properties own the property line. When building on a property line it is important to get both owners to agree that the fence or item being built can go there, otherwise a property owner putting up the fence has to put it on their own property and at a place where the construction does not damage the other property.

Covenants and Conveyances

There are other things that a property owner should be aware, such as a thing called “Covenants and Conveyances”. These things are basically restrictions concerning the things one can do with their property. Make sure you are told about such things prior to buying the property. Also be aware that there are such things as “No Vehicular Crossing” strips that run across some properties. A good realtor or civil engineer can find out about such things that affect the property in question.

Buying Property

When buying property there are certain things that the future property owner should do or insist upon as a “condition of sale”. In addition to whatever items the law dictates, the future property owner should insist upon obtaining copies of certain plans and maps relating to the property being sold. These plans should be legible and include, but not limited to, the following:

· Final Map(s) for the Subdivision
· Parcel Map(s) for the Property
· Any and All Survey Map(s)
· Utility Map(s) for the Property
· Flood Maps
· Grading Plans
· Street Map(s) for any streets adjacent to the property
· Floor Plans
· Electrical Plans
· Plumbing Plans

Note: Some of these maps or plans may be included on other maps or plans.

The buyer can consult a Civil Engineer to find out which items he or she should obtain prior to the sale. In some cases an Engineer may tell you that you don’t need a particular item, but stress the point that you would like to get the items most often used by the Civil Engineers in the event that the maps and plans get misplaced or destroyed. I am sure that many Engineers would understand and applaud your foresight. They may even offer, for a fee, to obtain the things you want or need.

Land Surveys

Prior to signing anything, or finalizing the sale, the buyer should demand upon the property being surveyed by a Registered Land Surveyor. The Land Surveyor should be required to not only find the property corners, but also set the corners of the property. The surveyor will usually mark the corners by using a piece of rebar, 2”x2” wooden stake, or driving a PK Nail at each property corner. If the markings for the property corners exist then demand to see how recent the survey was done and if any doubt arises about the corners being disturbed due to age or physics signs around the corners, then request for a new survey to be done as a ‘condition of the sale’.

During the “Property Purchasing Phase”, the potential buyer should find out where the property corners are located. When inspecting the site ask the realtor to physically show you the property corners, these should be easy enough to find for they are usually marked by PK Nails or Rebar. Remember that fences and other physical landmarks may not be placed along the property lines. If you don’t see the property corners marked, then make it a condition of sale for the property to be surveyed by a registered land surveyor prior to any documents being signed and request a legible copy of any Surveys and Plans for the property as a part of the sale agreement.

Monuments

It may be an added expense, but one option a property owner has is to monument his or her property corners. The monument is basically a property corner protected by concrete; which makes it harder for the corners to be disturbed once they are put in place. A surveyor will tell you whether monumentation is a good idea for you or not.

Whether a property corner is Monumented or not, it’s a good idea to protect them, ask the surveyor to place guard stakes around the corners he or she sets. You may also mark the area of the stakes with a brightly colored ribbon. Once you find the property corners then keep an eye on the corners fairly frequently and don’t feel embarrassed about chasing kids or adults away from them, land surveys are expensive – why waste money because someone didn’t know what the stakes were and disturbed them.

If a survey stake, pin or mark is disturbed… do not try to reset the stake yourself. If you do then do not consider that property corner as being accurate. Surveyors buy expensive equipment and they adjust the equipment for accuracy every 3 months to a year to insure their surveys are legal… you can’t duplicate their accuracy by eye balling a stake or survey point.

Investigate for other ways to protect your property corners for some ideas for protection are better than others. If a survey has been done recently on the property then have the person showing you the property take you to each property corner for your personal inspection. Also make getting a copy of the survey as a condition of sale.

Property Investigations

In some places a property being sold or transferred undergoes a thing called a “Property Investigation”. The Property Investigation is not to be confused with what the government agency responsible for deeds and such may do, but it may include whatever these agencies find out. A property investigation usually will provide research into the deeds and other legal documents for the purpose of creating a history of the parcel of land and it may show ‘problem areas’ concerning the property. The outcome is to provide as free and clear ownership of the property as possible and to help limit things like “Insurance Fraud”.

Property Inspection

Many areas of the United States demand that a property has to undergo an inspection for the purpose of the property and any structures on the property being ‘up to code’. It pays the person who wishes to buy a home or property to consult with their own inspectors prior to finalizing the deal for sometimes city or county inspectors ‘miss things’ that should have been found out. There are many homes in the US that were sold with the idea that a property was inspected and passed, but shortly after buying the home… the new homeowner found problems that should have been fixed before the sale of the home.

Summation

It pays to be aware of your rights and responsibilities of home and land ownership before purchasing a parcel of land or a home for it will save you disappointment and problems in the long run. There are a few beliefs about land ownership that seem to run rampant through-out our society and they are often reinforced and spread by people lacking the knowledge of property ownership who set themselves up as ‘experts’. Always take what you are told and check it out for yourself, but there are a few things to keep in mind:

1. The property owner doesn’t necessarily own ‘the street’ in front of their home.
2. The property owner doesn’t necessarily own ‘the sidewalk’ in front of their home.
3. The property owner is not necessarily legally responsible for injuries occurring in front of their home.
4. The property owner is often responsible for keeping the sidewalks around their home free of snow or ice or even trash.
5. The property owner is not necessarily responsible for repairing sidewalks and streets around their home.
6. The property owner may, or may not, be responsible for trimming bushes in the public domain.
7. The property owner has to conform to laws and zoning ordinances affecting the area where the property is located.
8. The property owner has normally has the right to access or exit their property safely.
9. The City, County or State does not have the right to take even 1 foot of your property without proper and fair compensation for your loss.
10. The Controlling Government Agency is not always right, but they are right more often than wrong.

There are many properties across the nation that are a ‘violation of the code’ due to the property owner thinking they had the right to put up fences or build closer to the property lines than the ordinances allowed. Additionally there are numerous illegal driveways or illegal structures built on properties across America simply because the property owner never checked out the laws and ordinances first. A property owner may get away with a code violation for years before the city or county notices the violation and deems it worthy to do anything about it. This doesn’t mean that whatever the property owner has done is legal; it simply means they are breaking the law and not getting caught. Do yourself a favor and take the time to find out what the laws state before you set yourself up for a future problem with a government agency.

Avoid the pitfalls of property ownership by listening to ‘the experts’ and the ‘experienced landowner’ and then check out their advice prior to doing anything. Remember that the City or County is not necessarily always right, but usually they are right more often than the average “Joe” on the street who hasn’t checked out the law thoroughly.