Lakefront access

ETex2 · Jun 4, 2005

What is the name of your state? Texas

Four and a half years ago, we purchased acreage that has access to frontage on a local lake owned by the city water authority. Before we purchased, we received written assurance that we would be able to have access to the lake through land that the water authority owned; they own all of the land around the lake and grant adjoining landowners ingress and egress, which allows the property owners to build boathouses, docks, etc. The written assurance was one sentence on a piece of paper signed by the lake's code enforcement/law enforcement officer. He also issues the permits (usually verbal) for boathouse construction. Payment for ingress and egress is on an annual basis. There are no written agreements, only some rules that were published in the local paper 20 years ago, which detail some of the specifics. Our land is atypical in that we gain access through about 3 acres of land, rather than the typical 10 ft. deep strip that the water authority typically owns around the lake. Two years ago, we built a boathouse with their full knowledge and permission, at a considerable expense.

They now have declared that this 3 acres, and an adjoining 20 or so acres, is surplus land. Local developers want to develop the tract with luxury homes. The lawyer who is the executive director of the authority has informed me that we will probably be notified soon to "move our boathouse". Right. This is a permanently anchored structure (per their rules) that would not be feasible to move.

I believe that we have an easement by estoppel, since they gave their full permission to build, and we have spent significant funds to construct improvements that will be completely worthless to us if they sell off this land. Our property value will also diminish by at least 50% if there is no lake access. Comments or opinions? (Sorry for the length of the post.)

HomeGuru · Jun 4, 2005

ETex2 said:
What is the name of your state? Texas

Four and a half years ago, we purchased acreage that has access to frontage on a local lake owned by the city water authority. Before we purchased, we received written assurance that we would be able to have access to the lake through land that the water authority owned; they own all of the land around the lake and grant adjoining landowners ingress and egress, which allows the property owners to build boathouses, docks, etc. The written assurance was one sentence on a piece of paper signed by the lake's code enforcement/law enforcement officer. He also issues the permits (usually verbal) for boathouse construction. Payment for ingress and egress is on an annual basis. There are no written agreements, only some rules that were published in the local paper 20 years ago, which detail some of the specifics. Our land is atypical in that we gain access through about 3 acres of land, rather than the typical 10 ft. deep strip that the water authority typically owns around the lake. Two years ago, we built a boathouse with their full knowledge and permission, at a considerable expense.

**A: very interesting in that you would close on the sale of the property without first getting a recorded easement or permit approval of some kind. And you buy the property and build a new boathouse all on a sheet of paper with one sentence on it. If you had a Realtor and/or an attorney, you did not get proper advice.

************

They now have declared that this 3 acres, and an adjoining 20 or so acres, is surplus land. Local developers want to develop the tract with luxury homes. The lawyer who is the executive director of the authority has informed me that we will probably be notified soon to "move our boathouse". Right. This is a permanently anchored structure (per their rules) that would not be feasible to move.

**A: then I guess when the surplus land gets sold, it comes with a free boathouse.
**********

I believe that we have an easement by estoppel, since they gave their full permission to build, and we have spent significant funds to construct improvements that will be completely worthless to us if they sell off this land. Our property value will also diminish by at least 50% if there is no lake access. Comments or opinions? (Sorry for the length of the post.)

**A: I disagree. Why not tell us the complete story?
Post word for word the "full approval" letter ie. the one sentence on a piece of paper.

ETex2 · Jun 5, 2005

I don't have the piece of paper with me. It's locked away in a cabinet at our lakehouse (?). To the best of my recollection, it says:

(date)

"This is to certify that lots (legal desc. of my property) shall have rights of ingress and egress to Lake (name of lake).

x_____ (sig. of officer)

And to address your comments:

The buyer won't get a "free" boathouse. That boathouse will contribute significantly to the market value of the property, and the market should recognize that fact.

I did indeed have the advice of an attorney and broker at the time of purchase, and did request a written and recordable instrument conveying rights to the frontage. But you have to realize this is a small town, and everything is down according to the way they've been done for years. I was assured by them and others that ALL properties on this lake are done the same way. The average price for a waterfront home is about $500,000, with several homes over 1 $million. They are all done the same way according to their executive director and attorney. Take it or leave it. So it's easy to say that I got bad advice, but when in Rome......

And as for not agreeing to the easement by estoppel, I didn't come up with this off the top of my head. I researched the matter and came up with case law that described very similar circumstances to mine. Two or three in Texas as well as other states. The key seems to be the fact that I built permanent improvements with their full knowledge and consent, and these will be of no value to me if the land is sold. The bottom line seemed to be that they can sell the land, but the easement by estoppel exists and will remain with the servient estate. Yesterday afternoon, I called a friend of mine who is an attorney that owns a local title company. He said I may have a valid argument on this basis. He said the key is, that the rights to ingress and egress is an easement (although they call it an "agreement", rather than a lease of lakefront. The property owners pay for it on an annual basis, though there is nothing in writing that say it is strictly an annual agreement.

So why do you disagree?

HomeGuru · Jun 5, 2005

ETex2 said:
I don't have the piece of paper with me. It's locked away in a cabinet at our lakehouse (?). To the best of my recollection, it says:

**A: then sorry, I can't be of any further help to you. I base my advice and response on facts only. And I did not read the rest of your post.

(date)

"This is to certify that lots (legal desc. of my property) shall have rights of ingress and egress to Lake (name of lake).

x_____ (sig. of officer)

And to address your comments:

The buyer won't get a "free" boathouse. That boathouse will contribute significantly to the market value of the property, and the market should recognize that fact.

I did indeed have the advice of an attorney and broker at the time of purchase, and did request a written and recordable instrument conveying rights to the frontage. But you have to realize this is a small town, and everything is down according to the way they've been done for years. I was assured by them and others that ALL properties on this lake are done the same way. The average price for a waterfront home is about $500,000, with several homes over 1 $million. They are all done the same way according to their executive director and attorney. Take it or leave it. So it's easy to say that I got bad advice, but when in Rome......

And as for not agreeing to the easement by estoppel, I didn't come up with this off the top of my head. I researched the matter and came up with case law that described very similar circumstances to mine. Two or three in Texas as well as other states. The key seems to be the fact that I built permanent improvements with their full knowledge and consent, and these will be of no value to me if the land is sold. The bottom line seemed to be that they can sell the land, but the easement by estoppel exists and will remain with the servient estate. Yesterday afternoon, I called a friend of mine who is an attorney that owns a local title company. He said I may have a valid argument on this basis. He said the key is, that the rights to ingress and egress is an easement (although they call it an "agreement", rather than a lease of lakefront. The property owners pay for it on an annual basis, though there is nothing in writing that say it is strictly an annual agreement.

So why do you disagree?

**A: see above.

ETex2 · Jun 5, 2005

"See above" ???

According to a TX law school site:

"In generaly, one who attempts to create an easement by estoppel must show that (1) a representation must have been communicated to the promisee, (2) that it must have been believed, and (3) that there must have been reliance upon such communication."

Further...." In North Clear Lake Development Corp. v. Blackstock, 450S.W. 2d 678 (Tex. Civ. App. -- Houston (14th Dist.) 1970.., the court, in finding an easement by estoppel, also considered the fact that improvements which had been made were permanent and substantial, that such improvements were open and obvious to the owner of the servient estate, that the servient estate had constructive notice of the activities of the dominant estate holders, and that such use and improvements had the tacit consent of the servient estate owners because there was no complaint made when the improvements were constructed."

So I guess I don't understand "see above". Not trying to be combative, just trying to understand what your basis for disagreement is. Just because I didn't get a written and recorded easement up front?? The court cases I refer to here and the others don't have them either.

HomeGuru · Jun 5, 2005

ETex2 said:
"See above" ???

According to a TX law school site:

"In generaly, one who attempts to create an easement by estoppel must show that (1) a representation must have been communicated to the promisee, (2) that it must have been believed, and (3) that there must have been reliance upon such communication."

Further...." In North Clear Lake Development Corp. v. Blackstock, 450S.W. 2d 678 (Tex. Civ. App. -- Houston (14th Dist.) 1970.., the court, in finding an easement by estoppel, also considered the fact that improvements which had been made were permanent and substantial, that such improvements were open and obvious to the owner of the servient estate, that the servient estate had constructive notice of the activities of the dominant estate holders, and that such use and improvements had the tacit consent of the servient estate owners because there was no complaint made when the improvements were constructed."

So I guess I don't understand "see above". Not trying to be combative, just trying to understand what your basis for disagreement is. Just because I didn't get a written and recorded easement up front?? The court cases I refer to here and the others don't have them either.

**A: the see above is in reference to pointing you to read what I posted as a response in the quotation box. Look again.

ETex2 · Jun 6, 2005

I found the piece of paper, with a hand written note from the inspector (see above). It's different than I thought, and says:

"(date)

Concerning (legal descr. of my property) (name of water authority) permit if owner & abutting property owner has easement from (name of oil co.) pipeline. All other rules & regulations apply.

(signed)
Inspector"

Pipeline easement verbage doesn't apply, since the pipeline co. has an easement from my property along the rear boundary which abutts the water authority land (not vice versa) and I have full rights to cross over this old idle pipeline. Also, a "permit" has already been issued. It consists of a tag that the inspector places on the boathouse. Nothing in writing. The fee for the permit is paid annually. There is no verbage in their published rules about this being strictly an annual permit, however. The verbage in their rules:

"INGRESS AND EGRESS
1. PERMIT. No person shall have ingress and egress to the property owned by the Authority without a permit providing for such ingress or egress, excepting use of a public concession or public boat ramp. To obtain such a permit, a fee set by the Authority shall be paid annually.
2. REVOCATION. The Authority shall have the authority to revoke and cancel any permit for ingress and egress should an adjacent property owner violate any provisions of the Rules and Regulations."

There are other rules that talk about penalties for violations, sizes of lots, construction of boathouses, etc. But nothing that applies to this particular situation since I am in compliance. The "inspector" was present when the contractor set the markers for the boathouse. My point that I believe there is case law to support a court opinion that I have an easement by estoppel(see above).

HomeGuru, hopefully since I have given you the actual "facts", maybe you can comment further. Anyone else want to dive in here, or is HomeGuru the only r.e. lawyer here? Thanks for your help.

HomeGuru · Jun 6, 2005

ETex2 said:
I found the piece of paper, with a hand written note from the inspector (see above). It's different than I thought, and says:

"(date)

Concerning (legal descr. of my property) (name of water authority) permit if owner & abutting property owner has easement from (name of oil co.) pipeline. All other rules & regulations apply.

(signed)
Inspector"

Pipeline easement verbage doesn't apply, since the pipeline co. has an easement from my property along the rear boundary which abutts the water authority land (not vice versa) and I have full rights to cross over this old idle pipeline. Also, a "permit" has already been issued. It consists of a tag that the inspector places on the boathouse. Nothing in writing. The fee for the permit is paid annually. There is no verbage in their published rules about this being strictly an annual permit, however. The verbage in their rules:

"INGRESS AND EGRESS
1. PERMIT. No person shall have ingress and egress to the property owned by the Authority without a permit providing for such ingress or egress, excepting use of a public concession or public boat ramp. To obtain such a permit, a fee set by the Authority shall be paid annually.
2. REVOCATION. The Authority shall have the authority to revoke and cancel any permit for ingress and egress should an adjacent property owner violate any provisions of the Rules and Regulations."

There are other rules that talk about penalties for violations, sizes of lots, construction of boathouses, etc. But nothing that applies to this particular situation since I am in compliance. The "inspector" was present when the contractor set the markers for the boathouse. My point that I believe there is case law to support a court opinion that I have an easement by estoppel(see above).

HomeGuru, hopefully since I have given you the actual "facts", maybe you can comment further. Anyone else want to dive in here, or is HomeGuru the only r.e. lawyer here? Thanks for your help.

**A: just as I suspected. You have a very weak case. Get an opinion from a local real estate attorney.

ETex2 · Jun 6, 2005

Just had an extended visit and consultation from a real estate attorney - he is a seasoned lawyer who owns a title company. He said that based on the case law I recited, and others he has heard of, that I have a very STRONG case, rather than a weak case. He says the strength in my case is not based upon the handwritten statement by the inspector, but by case law which supports an easement by estoppel. But still, I am interested in other points of view. I have found six different instances in which case law in Texas points to an easement by estoppel, including the case I cited above. Included are two cases heard by the Texas Supreme Court that both cited the 3 tests for estoppel. No written agreements were involved in these cases. So, why do you think the case is weak, HomeGuru? I'm seriously interested in your reasoning, which you have yet to state.

ETex2 · Jun 15, 2005

UPDATE: I hired a local attorney who owns the local title co. (where the property is; I live about 80 miles away). My atty. agreed that there was a good case for establishing an easement by estoppel, but an even better case for a taking. If the ingress/egress permit is revoked or denied, this would be a taking, and we should file suit for inverse condemnation. The question is: exactly when does the "taking" take place? The water authority's land hasn't been sold yet, there are just discussions about the value and about selling it. Since I, as the property owner, will have to disclose this information to any potential buyer, a "taking" of sorts has already occurred. My property value has already been impacted, since no buyer will touch it as "lakefront" property until the matter is resolved. A sale and/or decision to sell could take as long as a year according to them. Question: would you file suit alleging condemnation now, or wait until later?

BTW - We met with the board of directors yesterday. Their attorney seemed to pucker a little when I mentioned damages and a taking. They "tabled" the matter for now so they can discuss the merits of my argument in executive session, I guess.

Some Random Guy · Jun 15, 2005

You have not been clear in where this boathouse it situated along the water frontage of the land. Is it at or near one of the ends of the property?

You may be best served by using the threat of a lawsuit against the water authority to allow you to buy a parcel of the land adjoining the boat house at a reasonable price. This would only work if your parcal wouldn't adversely affect the new McMansion cluster going up.

ETex2 · Jun 16, 2005

Some Random Guy said:
You have not been clear in where this boathouse it situated along the water frontage of the land. Is it at or near one of the ends of the property?

You may be best served by using the threat of a lawsuit against the water authority to allow you to buy a parcel of the land adjoining the boat house at a reasonable price. This would only work if your parcal wouldn't adversely affect the new McMansion cluster going up.

The water authority owns the lake (which lies at 440 mean sea level), and typically all of the land around the lake up to 448 MSL. In my case, they own more than that; a parcel that goes up to about 465 MSL. My rear boundary abutts their land at 465 MSL. The boathouse itself (open but covered with a boat lift) sits over the lake surface, and I have a deck that sits in between 440 and 448 MSL.

The exec. director asked me if I was interested in purchasing this area (about 4 acres or so). And I said yes, but the value to me is strictly what the 4 acres adds to my property value BEFORE they take my rights away. He implied that they will have to sell the land at market value, which essentially means that their negotiations of price will only occur AFTER they take my permit away, then get me to pay an outrageous amount (they're thinking $500 to $1000 per linear foot, and I have 607 LF!). I think this can be planned out so that any easement or access agreement that I retain will have little or no impact on the land itself, esp. if the is "easement" area lies along the boundary of the proposed platted lots. But right now they are stalling and hoping that I will just go away.

My thoughts are to file lis pendens and a lawsuit for inverse condemnation, so they will be forced to deal with me prior to any sale. Since sales negotiations with any potential buyer, and the sale of the land are only discussed in executive session, there's no way I will know if an actual sale is pending until it's too late.

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