Temporary Construction Easement

[JasonCamit]

Is a Temporary Construction Easement that is dedicated to a Municipality considered a Public Service Easement that is subject to the vacation process as set forth in the Streets and Highways code?

[Warren Smith]

No, a TCE is, by definition, temporary and ceases to exist at the completion of improvements - usually upon filing of the Notice.

[JasonCamit]

Warren,
Is this definition by law. If so, which code is it located. I am getting grief from a real estate agent on the termination of a current TCE and would like to point him in the right direction. My understanding was that it terminated by the filing of the Notice, but I have found in the past that some actually went through a vacation process.

[Warren Smith]

Jason,

Our TCEs are structured as agreements. That is, the Grantor and Grantee sign the document. Within the body are such things as "Purpose" and "Terms" which state mutual obligations and what constitutes the termination of the easement. It is, essentially, a contract and is governed by the provisions of the Public Contract Code as far as remedies go.

{edit - I misspoke relative to the Public Contract Code. That deals with competitive bidding. As a contract, an agreement would be subject to the normal rules of interpretation according to its own terms. That's why our County Counsel signs off as to form on ours.}

[dedkad]

A properly written temporary easement should include a sunset clause, leaving no doubt as to when the temporary easement ceases to exist. Sounds like maybe that wasn't the case with this easement. I would talk to the title company and see if you can get them to remove it from the title report. That should ease the real estate agent's mind.

[Ian Wilson]

A TCE is not likely to be a PSE. The Courts have held that easements should not be expanded in nature beyond the original intent of the easement. The English language can be rather vague at times, but nothing about Temporary Construction Easement even remotely smacks of Public Service Easement.

If the Notice of Completion has been recorded, by definition, the easement has been extinguished by the Notice.

Further, a well constructed TCE will self-extinguish when the people responsible for the easement fail to do the job by neglect or any other reason. Simply add a date well in the future at which point the easement is void.

[RICH FULTZ JR]

We occasionally acquire Temporary Construction Easement for our projects within the City of Turlock. It is difficult to place a termination date or specified time on the TCE. I agree the filing of the Notice of Completion would be the best way to terminate the TCE, however I have experienced challenges with our Recorder's office. My first attempt was to add language on the NOC that refers to the Document No. of the TCE. Therefore the TCE would not linger in the title trail. Our Recorder's office refused to record the NOC with the added language. It did not match their example in the "Book of Processes". I came up with a separate document that Quitclaimed our interest in the TCE and referred to the TCE Document No. This document was filed at the same time as the NOC. And no, TCE are not the same as a PUE or PSE.

[William Magee]

We occasionally acquire Temporary Construction Easement for our projects within the City of Turlock. It is difficult to place a termination date or specified time on the TCE. I agree the filing of the Notice of Completion would be the best way to terminate the TCE, however I have experienced challenges with our Recorder's office. My first attempt was to add language on the NOC that refers to the Document No. of the TCE. Therefore the TCE would not linger in the title trail. Our Recorder's office refused to record the NOC with the added language. It did not match their example in the "Book of Processes". I came up with a separate document that Quitclaimed our interest in the TCE and referred to the TCE Document No. This document was filed at the same time as the NOC. And no, TCE are not the same as a PUE or PSE.

Rich hit the nail on the head. 30 or something years ago I had a title officer from Chicago Title tell me that TCEs don't automatically extinguish in California and that they would be considered a cloud until quit claimed. I see his advice is repeated throughout many agencies in California. Caltrans is one. Although Caltrans typically does not record TCE's (they treat them more as short term contracts, not land encumbrances), when they do record a TCE, their written policy is to file a quit claim after the usage ends in order to ensure no claim of cloud of title remains.

[Anthony Maffia]

That's interesting. Title companies have removed TCEs with sunset clauses when I've asked.

[RICH FULTZ JR]

The difficult part is predicting when the TCE should terminate. I have been involved with acquisition of TCEs on a project that did not get completed until ten years later. Sometimes these timelines are impossible to predict. I am somewhat reluctant to put a termination date or length of time, for that reason.