By Phillip “Andy” Doherty
There are many active transportation projects in the region, including the current section of the I-83 Capital Beltway Project and the Carlisle Connectivity Project. Worsening roadway conditions, high traffic volume, and safety are the key issues addressed by these and other projects. Projects of such significance clearly have significant impact on real estate.
The legal framework from which rights in real estate are owned and transferred is complicated. It is important to know what limits there are to the free use of such rights; how real estate may or may not be used; and what documents are involved, and where and why they are recorded. Let’s discuss how these issues apply to Right of Way, Easements, and Partial Interests in Land.
Real estate is physical; it consists of the land and all improvements on and to the land. Improvements such as buildings exemplify improvements on the land, whereas utilities or drainage facilities are improvements to the land. Land is provided by nature, it is immobile or fixed in location, effectively indestructible, and nonhomogeneous. No two parcels of real estate are identical; every parcel of land is unique, at least with respect to location, which is fixed. Real estate cannot be physically transferred from one property owner or user to another, whereas rights to and of the land are transferrable (real property). Accordingly, a legal system of property rights has been developed.
Property rights in and to the real estate can be identified legally. Legal rights in real estate are typically in writing and usually must be in writing to be legally enforceable. In the United States, private property is held under what is called the allodial system, which allows fee simple absolute ownership under which there are the rights of inheritance or transfer of ownership. Fee simple ownership is subject only to certain limitations. Public limitations are limited to police power which is exercised by the government to serve the interests of the public such as health, safety, and general welfare; eminent domain, wherein public agencies may acquire rights in privately held real estate; taxation, which represents a lien on real estate, superior to all other liens; and escheat, where if a property owner dies without a will and has no heirs, title reverts to the state. There may also be other limitations as well, which may be either voluntary or involuntary.
Deed restrictions are private, voluntary limitations placed in favor of others. Transfer of ownership does not extinguish these rights; they run with the land. Easements may be voluntary, providing to others the right of way to cross over or use of real estate. Limitations placed by others are involuntary limitations usually because of some action or a lack of action by an owner of land that damages another party. Liens are a form of involuntary limitations, that represent a claim for payment of debt. Encroachments and adverse possession are also forms of involuntary limitations placed on real estate—both may become clouds on the owner’s title to the real estate.
Estates in land are non-ownership rights in real estate. Where fee simple or fee simple absolute is the highest form or ownership, it is still subject to the limitations discussed earlier. Estates in land may also be further classified as either freehold or non-freehold. Freehold estates represent ownership interests and are usually of an indeterminate length of time or held in perpetuity. Examples of freehold estates are those interests which are or may become possessory.
Non-freehold estates are always of a specific length of time and are frequently referred to as tenancies because they are possessory interests. A leasehold estate is a non-freehold estate; this possessory interest transfers with title as a limitation on the fee simple estate.
Estates in Land and Public Transportation Easements
Generally, in Pennsylvania, most right of way is acquired in fee simple, though some consideration may be given for mineral rights. Agencies are authorized to acquire land in fee simple or some other lessor interest by donation, purchase, or by condemnation. Historically in Pennsylvania, highway easements were acquired as required right of way for transportation projects. A highway easement is not fee simple ownership, but it is very close. It is the right to the exclusive possession of property always and for all or any purpose(s). This type of ownership interest is also currently acquired at times within certain areas of Pennsylvania. In areas where a transportation project is located on land which is being deep mined or is likely to be deep mined (including gas, oil removal) by wells located off the right of way, a highway easement may be acquired as opposed to acquiring in fee simple.
Private property lines are typically not surveyed for strip takes along an existing transportation corridor or new construction when only partial takes (partial interests in land) are required. Existing property, or property to be acquired, may be classified as limited access. Abutting land owners do not have the legal right of ingress or egress (access) to, across or from a limited access highway, except as may be provided by the transportation agency. Rights to access are not grandfathered without a highway occupancy permit.
Only very specific interests may be acquired for transportation projects in Pennsylvania. Any other interests not previously defined may be acquired if approved by the Office of Chief Counsel, Real Property Division, with concurrence by the Chief, Utilities and Right of Way Section, Bureau of Project Delivery. Right of way plans in Pennsylvania often include the following examples of the types of easements, with the following partial descriptions or uses. These definitions may be found on recorded right of way plans in most any courthouse within the Commonwealth.
Aerial Easements: a lesser interest used when the highway facility or structure passes over a railroad, the PA Turnpike, or any other property in which substantial right of way damage savings can be affected.
Slope Easements: used for support and protection of the highway improvement.
Drainage Easement: used for authorization to enter upon any land to cut, open, maintain, and repair such drains or ditches, inlets, or outlets as are necessary to carry waters from roadways.
Channel Easement: an easement to change water channels as a lessor estate in land.
Occasional Flowage Easement: an easement to allow periodic flooding.
Temporary Construction Easement: areas needed for temporary roadways, temporary bridges, demolition of the balance of a building which is partially in the right of way, etc.
Underground Structure Support Easement: used when a highway facility requires substructure support elements to either hold the facility back or up, such as anchors, wall straps, batters, or other subsurface elements outside the right of way.
Sound Barrier Easement: used when a highway facility requires construction of a sound barrier.
Sight Distance Easement: used in very limited circumstances, acquisition of a sight distance easement over property abutting a highway to remove obstructions to the sight distance of those using the highways across and over lands of another.
Sidewalk Easement: a required sidewalk easement may be used to designate areas necessary for sidewalk construction outside of the right of way.
Traffic Signal Easement: a traffic settlement easement may be used to designate areas necessary for the installation, operation, and maintenance of a traffic signal.
Pipelines and other utility companies utilize similar easements when required. The language is also similar, though most easements are taken as a permanent easement (see immediately below). When land is required for staging or temporary construction, a temporary workspace easement is utilized. Exhibits relative to individual parcels are utilized and referenced with each recorded document. Below is an example of pipeline easement language:
… the right to a perpetual easement and uninterrupted right from time to time to place, erect, construct, install, use, operate, patrol, inspect, maintain, repair, reconstruct, alter, change the size of, renew, add to, relocate and remove, at will, a buried pipeline or pipelines and other appropriate facilities, accessories, and appurtenances, including but not limited to valves, fittings, and all other appurtenant facilities necessary for the transportation of natural gas, oil, petroleum products or any other liquids, gases, or substances, which can be transported through a buried pipeline, along with communication cables, wires and appurtenances, now or in the future, on, over, under, through, and across all that certain area consisting of a 35-foot-wide strip identified on Exhibit A dated ___attached hereto and made a part hereof. Grantor also grants unto Grantee the temporary right to enter upon, clear off, and use an additional strip (or strips) of land, labeled on the attached Exhibit A as Temporary Workspace, during pipeline construction and restoration.
The foregoing material is found on most recorded right of way plans, deeds of record, and accompanying exhibits, which may be found in county courthouses within the Commonwealth of Pennsylvania (public records). Other state agencies may operate in similar fashion. The processes of clearing right of way for transportation purposes are governed by State Transportation Departments, and/or the Federal Highway Administration. Utility projects are governed by the Federal Energy Commission or the Public Utilities Commission in Pennsylvania.
Phillip “Andy” Doherty
Century Engineering, Inc.
Phillip “Andy” Doherty is a Senior Right of Way Agent for Century Engineering, Inc. He is a state certified general real estate appraiser licensed in PA, NJ, MD, and DE. Andy has prepared appraisals for right of way for private individuals impacted by transportation projects, adverse condemnation proceedings, the Pennsylvania Turnpike, and the Pennsylvania Department of Transportation. He has testified as an expert witness in front of various courts. He was former Chief of Appraisal and Appraisal Review for the Pennsylvania Department of Transportation. You can reach him at firstname.lastname@example.org or (717) 901-7055.
Featured in Commercial Real Estate Review – Fourth Quarter 2018