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Who owns the drainage ROW  

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BrandonA
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June 13, 2018 6:49 am  

Some of my co-workers were discussing who owns the title of streets and we discussed how almost all subdivision streets are easements and the adjoining lot owners own to the center of the street. Then we looked at a recent subdivision as an example. In this subdivision, a drainage ROW is also called out as you see in the image below. Who owns the title of the drainage ROW? My guess is it would go to the adjoining landowners (lots to the West and landowner to the East if it were ever abandoned, or the fee ownership of the land was to be purchased.

This is in Texas. Thoughts?

 

dedication
drainage ROW


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Paul in PA
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June 13, 2018 7:05 am  

Typically a drainage ROW is held by a homeowner's association or a municipality. I would say it is harder to abandon a drainage ROW than a street, because a physical street can be readily removed from being a street but drainage goes on forever. While some subsequent landowner may someday hold title to the underlying fee, water rights laws that predate the USA would not allow regrading to stop the drainage from draining. Upstream and downstream landowners have to be considered in that equation.

A two dimensional plan gives no idea of the true picture.

Paul in PA


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BrandonA
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June 13, 2018 7:39 am  

I am fairly confident the HOA does not own this particular drainage ROW, at least there aren't any notes on the plat indicating as such.


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goodgps
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June 13, 2018 7:48 am  

Fist of all I believe when you say "Adjoining owners" own the street, it may be a referral the if the street is abandoned. the adjoining owners may have rights to "half" of the street.  

THAT applies to non-incorporated streets.  From the little evidence above, it strongly suggests that the dedications made on the Map are to a "incorporated" public agency.  The incorporated agency "owns" the dedications on behalf of the public.  Should the "Public" abandon the use and dedication, the incorporated public agency can determine how to distribute the property. 

Case in point of a drainage basin Lot, Once abandoned, the City may sell the lot to a buyer who can fill it in and enjoy the same rights as adjacent owners.  The public agency can also place notice to sell an alley, however, in the event that no adjacent land owner wishes to buy any or all of the abandoned alley the Public agency can sell to a third party.   

It can be assumed that in this case, the drainage easement is "owned" by the City / County on behalf of the public. The City/County maintains it and hold liability for its use, tresspass or other.   

 


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Dan Dunn
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June 13, 2018 7:48 am  

A map can not transfer title.

Done correctly a deed(s) should have been filed dedicating the roads and easements.  The deed that created that "85' Drainage Right of Way" will tell you if it was fee simple or an easement and to who.


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BrandonA
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June 13, 2018 8:13 am  

I pulled the deed. Here is the applicable section.

 

restrictions


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A Harris
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June 13, 2018 8:19 am  

When there is a HOA, the developer maintains control of things until a certain percentage of the properties of the development have sold and then the control is transferred to the HOA.

Any activity of that would be in the minutes of the HOA meetings and may not make their way to some public records.

RPLS NE Texas
d[-_-]b


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BrandonA
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June 13, 2018 8:33 am  

That is the case here as well, it states that a couple of lots will be owned and maintained by the HOA/developer, but not the easements or ROW.


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A Harris
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June 13, 2018 9:07 am  

It is not a fact that every item is spelled out in document that makes the transfer of rights from develper to HOA.

Look for the phrase"any and all" or similar verbage.

I would say that the transfer of easement use is made to the HOA  wheter it is specified or not, clearly the intent that the area be for drainage until other means of discharge is created.

Do not really see the easement being an item of ownership, it is a right of use area for the purpose it was created.

RPLS NE Texas
d[-_-]b


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aliquot
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June 13, 2018 10:13 am  

It looks like the drainage is at the edge of the subdivision. If this is true, the land owner to the east has no interest in it. Recessionary rights follow the chain of title. Only parcels that were created from the same parcel as the ROW have a claim to it.

A land owner doesn't suddenly gain land because their neighbor creates a ROW and then vacates it. 


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aliquot
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June 13, 2018 10:16 am  
Posted by: Dan Dunn

A map can not transfer title.

Done correctly a deed(s) should have been filed dedicating the roads and easements.  The deed that created that "85' Drainage Right of Way" will tell you if it was fee simple or an easement and to who.

It sure can, provided the correct language is above the signature. "The ROWs are hereby dedicated to the public"

I've even seen warranty deed language incorporated into the signature block on a plat. I certainly wouldn't recommend doing that, but title has passed, loans have been made, and taxes have been levied. 


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jim.cox
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June 13, 2018 10:16 am  
Posted by: BrandonA

 almost all subdivision streets are easements and the adjoining lot owners own to the center of the street.

This is in Texas. Thoughts?

New Zealand is a bit different - here the roads and streets are 'owned' by the city or county. Create a street on a subdivision and it gets vested in (given to) the Territorial Local Authority on deposit of the plan.

We do also get small private lanes which are held as multiple mutual rights of way over each other.

=mjc=
.


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aliquot
(@aliquot)
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June 13, 2018 10:21 am  
Posted by: jim.cox

 

New Zealand is a bit different - here the roads and streets are 'owned' by the city or county. Create a street on a subdivision and it gets vested in (given to) the Territorial Local Authority on deposit of the plan.

We do also get small private lanes which are held as multiple mutual rights of way over each other.

It's like that in some places here too. The local government holds what is called a limited fee title to the streets. Limited by the fact that if the street is vacated title passes back to the neighboring lots. 


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