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Thread: Easement agreements for bus stops

  1. #1
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    Easement agreements for bus stops

    All,

    I'm evaluating placement of bus shelters with stops and the dimensions of the shelter would place us several feet into a private property. The landowner is ok with placing a bus shelter and stop but our agency has never done so - only public right of ways. We've secured state right-of-way permits for the shelter but it will be in both public right of way and private right of way. What are the central tennants to an easement agreement? What elements are essential to the agreement, adapted to our needs? Any templates or samples on the net? And what planning processes must it go thru (i.e. city council approval, city zoning commission approval, etc.?)

    Any insight would be helpful.

  2. #2
    Cyburbian DetroitPlanner's avatar
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    We don't own the buses, but you better make darned sure that anything you place on private land is non-federally funded or has been fully vetted by FTA's public-private partnership process. (I have a feeling using your own money would be more cost effective).
    We hope for better things; it will arise from the ashes - Fr Gabriel Richard 1805

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    @ Detroitplanner

    I'm not quite following you. The transit amenities would be partially on private land (2-3 feet) but will be mostly on public right of way (4-7 feet) and is for the purpose of benefiting access to the transit system, for the general public, regardless, if it does get placed partially on private land. That's in accordance with FTA's capital and real property clauses. We are covered with FTA.

    We are not, however, covered with our property owner(s) where an encroachment would occur if the bus stops are placed. And thus my question.

  4. #4
    Cyburbian
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    An easement in real property is akin to a license—it grants you the right to do something on or over the land, etc., without actually giving you title to the land. I would caution against using a template, because each case requires different context appropriate analysis. For instance, when does it terminate (or does it?)? An agreement is usually reached, then the easement is drafted, and recorded, and becomes part of the records of deed and influences title searches which effect sales later on, so any owner will want to get their attorney involved as well. One thought might be to just build it, and risk being sued for a taking (by permanent physical occupation). I’m not suggesting it, just noting that if the owner is OK with your actions, she won’t sue, and if she does, how much would the reasonable value be? Less than the cost of hiring a competent attorney to draft the easement and negotiate on both sides? Many don’t know this, but a primary rationale for setbacks in urban areas is to ensure that the municipality doesn’t go broke when it needs to widen a street (because it won’t have to take structures, only land, by eminent domain). So, to reiterate, an easement is only necessary if you’re worried about being sued (and you always should be, as should the landowner), and it works like a license, but should be drafted by someone with knowledge of the particular situation, and negotiated by both sides. Maybe the landowner will just give you the property and write it off? Please don’t take any of this as legal advice, as that’s not what I’m offering, I just happen to have a little knowledge about this stuff and am sharing from my own perspective. Always check with a local attorney, it will be worth it.

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    landplanninglaw
    An easement in real property is akin to a licenseóit grants you the right to do something on or over the land, etc., without actually giving you title to the land. I would caution against using a template, because each case requires different context appropriate analysis. For instance, when does it terminate (or does it?)? An agreement is usually reached, then the easement is drafted, and recorded, and becomes part of the records of deed and influences title searches which effect sales later on, so any owner will want to get their attorney involved as well. One thought might be to just build it, and risk being sued for a taking (by permanent physical occupation). Iím not suggesting it, just noting that if the owner is OK with your actions, she wonít sue, and if she does, how much would the reasonable value be? Less than the cost of hiring a competent attorney to draft the easement and negotiate on both sides? Many donít know this, but a primary rationale for setbacks in urban areas is to ensure that the municipality doesnít go broke when it needs to widen a street (because it wonít have to take structures, only land, by eminent domain). So, to reiterate, an easement is only necessary if youíre worried about being sued (and you always should be, as should the landowner), and it works like a license, but should be drafted by someone with knowledge of the particular situation, and negotiated by both sides. Maybe the landowner will just give you the property and write it off? Please donít take any of this as legal advice, as thatís not what Iím offering, I just happen to have a little knowledge about this stuff and am sharing from my own perspective. Always check with a local attorney, it will be worth it.


    Thank you for sharing your insight. You are correct, although we are all in agreement with placing the bus stop, it is best to have an easement agreement in place to prevent anyone from being sued in the long run. I have been in discussions with the landowner's attorneys and they've asked me for a draft easement agreement - which I do not have and will have to provide. I have never dealt with easement agreements - where could I find more information that'll help me draft one?

  6. #6
    Cyburbian
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    Are you familiar with any other instance of an easement in your community (or anywhere in your state)? If so, look to the registry of deeds where it will have been recorded for that property, and you will get a sense of what an easement looks like. Ultimately, you will have to have their attorney negotiate it if they find anything objectionable, so it might be worth it to ask them to draft it and then reimburse the landowner (who doesnít want to pay to allow you to do something). If the price is too high, hire another local attorney who is less expensive or charges an acceptable flat rate. Does your agency or town have an in house counsel or a contracted law firm with which it works? Most do, and this is a legal instrument so I would suggest using an attorney. Otherwise, google ďsample easementĒ to get a sense of what one looks like, do your best winging it, and let the other attorney modify it (as they will, because chances are your draft wonít be sufficient given a lack of legal experience, which is why I suggest just letting their attorney draft it, paid for by your agency, and then hire someone to review it). Let me know if I can assist any more, but please remember unless you live in Maine I canít offer official legal advice, just some insight to use as a starting point.

  7. #7
    Cyburbian
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    Also consider just buying the property againóI may misunderstand your concern about being sued (who is the concern coming from?), but if the city owns the property, it is rare indeed that it will ever be found liable for anything, especially anything that wouldnít already be the case for the rest of the facility on public land. As for the owner, they would be more secure in avoiding liability if they just sold it, too. If youíre worried about it costing too much, just take it by eminent domain (check state law checks on this power first), which would allow you to pay fair market value. Or, just use that as a credible threat (phrased in politically acceptable terms) to get the landowner to sell for less. Another option (also tricky from a PR standpoint) could be just to plunk the facility down there, and wait for the landowner to sue for a taking (putting the burden on them to bring an action for compensation, rather than the other way around). The specter of all of these things should weigh in favor of the other side just drafting the easement, if thatís how they want to proceed, for you, rather than expecting you as a planner or other municipal official to do their line of work. Just thinking aloud, Iím sure thereís more to the story than I know from these limited postings, so take this all with a grain of salt and, again, check it all out with a local attorney first (I have to write that).

  8. #8
    Cyburbian mike gurnee's avatar
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    Either obtain an easement or buy the land. A public body that takes property by squatting is in trouble. An attorney should (and perhaps must) prepare the documents. Someone else to do so can be practicing law without a license. You can draft something using a model (from your state) and have an attorney prepare the final document. A purchase most likely will require a survey; an easement can possibly have a less exact land description.

  9. #9
    Cyburbian
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    All true, however, the "trouble" a municipality would be in would amount to a requirement to pay the fair market value for the land "taken" whereas a purchase may cost more, because a landowner who realizes the value of the land to the City may attempt to hold out for more than is reasonable) especially where there are no viable alternative sites, that's the rationale for allowing eminent domain, allowed by negative implication in the Constitution so long as just compensation is paid. For that reason, while not popular, I would suggest taking the property instead of negotiating a traditional sale, as long as state law hasn't constrained this ability and the PR effect wouldn't be too bad. Again, check with a lawyer, but as I understand it the unauthorized practice of law (a no no) only arises when someone endeavors to represent someone else, not themself. So, because the landowner has counsel, you may very well be able to draft an easement protecting your own interests, and to the extent the interests of the landowner are effected defer to their counsel. I stress the word "may" and again refer you to local counsel, but start by checking your state definition of "practice of law"--some states consider the right to represent one's self as inalianable, see http://www.vsb.org/docs/UPL_213_draft_040808.pdf. Again, check with your attorney to see if you can save some money by doing any part of this yourself. Do all landlords hire attorneys to draft a lease agreement (a legal doc?). No. But could a tenant draft one (which is what you'd be doing in this case, I suppose). I don't see why not, but don't take my word for it. I hope this helps as a starting point for further legal review by a Texan attorney.

  10. #10
    Cyburbian
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    I'm one of the people who likes the easiest, most obvious, often overlooked solution. This may seem really dense, but I'll ask anyway. Why not just get smaller bus stops/shelters?

  11. #11
    Cyburbian
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    Everything's bigger in Texas. I had to.

    I agree with your suggestion, if feasible.

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    @ lanplanninglaw - we do not have a legal dept. but we have a contracted law firm used seldomly for certain situations; I'm in a Council of Governments (COG) with several departments and many layers of heirarchy above that'll make it difficult to get legal counsel because it will have to be approved by the Exec Dir. Your explanations are very well rounded and will certainly help me make a more well informed decision at this juncture, thank you.

    Purchasing the land is not an option due to the funding mechanism for these amenities. We have a fixed # of bus stops for several cities, with each city commission being aware of how many bus stops are coming their way. Several factors making it a difficult planning process: The bus stops were purchased by our purchasing dept when the grant was secured for god knows what reason; there is a shortage of bus routes and some routes are unsustainable, making it difficult to pinpoint good locations; no pre-existing bus shelter guideline or manual in-house; limited sidewalks/infrastructure leading to potential sites; no additional money (and thus flexibility) in the grant to add pathways/ADA accessiblity beyond the concrete pad, and different cities moving at different paces in helping us navigate their permitting process.

    This project is a planner's nightmare. Many corrective actions cannot be taken because of the rigid conditions set from the start; I picked up the project halfway because the previous person was building just to build - many stops were not even along bus routes or were inaccessible by foot and they were not along popular thoroughfares (because most thoroughfares are state highways that require additional permitting procedures from the state DOT).

    @ Huck - they've already been purchased my friend.

  13. #13
    Cyburbian
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    Ah, the deadly curse of acquisition before planning. Happens to the best of us. Does your city have a city attorney?

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    @ Huck, we have a law firm that provides legal services and for a combination of factors - we are a non-taxing government agency and attorneys charge serious doe - access to this legal advice requires the classic multi-layered onion of bureaucracy and approvals..

    So I'm trying to accomplish my project without having to go up and down the food chain as it will prolong the project tremendously (especially for our construction firm that is on hold) but I might not have any other option.

  15. #15
    Forget the easement and buy the property. Even if you need a whopping 400 square feet and even if dirt in your burg is worth say, 10K an acre, you are looking at less than a thousand bucks. Then you own it in fee simple, done.

    If the private property owner happens to have a service business that would benefit by having folks lingering at his front door (buying a magazine or a pop, or whatever), the owner ought to dedicate the dirt.

    Just my $0.02.
    Je suis Charlie

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    @ Gedunker: thanks for the advice but there is no additional funds within the grant for any purchases. In addition, I have no access to local funds nor our standard formula grants and management has turned down several requests of mine to open one.

    Previously, I was seeking additional funds to add ADA accessible paths to the future bus stops bc of substandard existing infrastructure and it was turned down. Not because management does not want to provide access but because there is limited local funds and we use them to leverage federal funds for operational service. It is my understanding that we will be opening a federal grant within the next year or so to come back and make the accessibility improvements...but that is not soon enough bc we have a construction firm on board trying to finish with construction.

  17. #17
    Cyburbian mike gurnee's avatar
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    How about a long term lease at $100 or so a year? The description does not have to be as specific as a fee simple purchase or easement. You need protections, and there could always be a new property owner to contend with.

  18. #18
    Cyburbian
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    I agree with Mike, a lease is the way to go (now that I read things more closely and think about it a bit more). An easement is typically the right to use someone else's property, not to build upon it. However, again I stress I am no expert in easements, and definitely not in Texas easement law. Think telephone utility cables, or a pathway through a forest the right to use which belongs to a non-owner. These are typically easements. Or a driveway to access your house or something over land you don't own. But placing a structure in an easement seems entirely different -- which is not to say an easement has never been used this way, just that it typically isn't. But, if a lease is used more commonly for buildings placed upon the land of another, why not use it here? I'm still not even convinced an easement could support a structure, because it is the right to use or traverse the land of another, typically, not to occupy it indefinitely and totally. So, if you use a driveway over an easement, the owner can travel over it too. But if you place a structure over something, it entirely deprives the owner of using it (unless waiting for a bus). I think a well drafted lease is crucial. You would be surprised how many lawyers will work for pennies these days. Sure, if you hire the big shots in a major Texas city like Dallas or Houston you can expect to pay for their high rise office views in hourly rates. But if you get a smaller town lawyer (and many of them are as good as the big guys in areas that don't require whole legal teams, like leases) you can expect to pay a reasonable amount. Some students out of law school might even do it for free if they are looking to build their resume in this area of law. Advertise at the local law school (UT maybe? Have the career services office send it out to recent grads by email, because they're all looking for work now. The number of unemployed lawyers probably matches the number employed these days, so I don't think cost'll be a factor.

  19. #19
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    @ Mike: good advice, I'll be doing some research on it.

    @ landplanninglaw: I like your idea about checking with our local law schools - very creative.

    Thanks everyone.

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