Easement shown as future easement on TM

[sako]

I'm supposed to survey a property which has a portion of it fenced out, the adjacent property is a large parcel of land that once used to be a golf course.
The fenced area is shown on the Tract Map on the southern portion of the subject property and has depicted as " Future, private fencing & landscape easement", the area is shown with bearings and distances.
The prem. title report does not mention any easement on that portion of the land. I suggested that the owner ask the title company of clarification.
The title company's response was:
“This is a short form prelim which includes general exceptions for easements and CCR’s; used in refi files. However I did review the property and the only easements are the one shown on the map , including the “reserve for future landscape and fencing “

I responded: "In my opinion the words " future, private fencing & landscape easement" do not guaranty or emphasize existence of such easement.
The title company should do a thorough research and certify the existence, or non existence of the easement"

The title company's response was :
The client got their information from the recorded tract map. Since the tract map was recorded for this subdivision, there has been no other recorded easement document(s) shown in the public records. Prelims can only show what is in the public records.
If they want further confirmation regarding easements on the property, they will need to hire a Surveyor.
But, I think since the information of a future easement was shown on the map, that is a good indication of the developer’s intent to have one.

My question is: Shouldn't developer's intention be transformed in a written easement in order to be valid?

[-Dave Ryan-]

In answer to your question, yes, if the owner wanted to create an easement, there's a process for doing that. Certainly not the manner you describe here. If the title co. did their research and found nothing further regarding a document involving the proper parties granting an easement, it doesn't exist. It was a poor choice to put that on a recorded map, just clouds title, but didn't actually create anything.

Dave Ryan
Arcata

[sako]

Dave, I don't think the title company did or want or do a research regarding the easement. If I hadn't sent them a copy of the TM with the "future easement" showing on it, they would just read the prem. title report and say that no such easement exist, now they talk about the intent of the developer.

[dedkad]

Any reference to this future easement in the Owner's Statement on the map? I gather from your post that the easement property is part of the subdivision, but may have been intended to be reserved for the adjacent golf course property. Did you pull title on the adjacent property to see if anything shows up on that property?

[sako]

Any reference to this future easement in the Owner's Statement on the map? I gather from your post that the easement property is part of the subdivision, but may have been intended to be reserved for the adjacent golf course property. Did you pull title on the adjacent property to see if anything shows up on that property?

Owner's statement talks about lot of public dedications but not about subject future easement .
How can a surveyor get the title report on adjacent property?

[Warren Smith]

Easements which are not capable of being dedicated to the local agency at time of approval of the final map can be shown on the map for reserving at the time of sale. If not specifically reserved in the Grant Deed, the description normally reads "Lot X as shown on the map of ...", thus creating a potential cloud over the area shown.

A source for clarification would be the conditions of approval for the tentative map, where that use should be referenced in a section dealing with conditions to be met at time of sale or development. These are, essentially, disclosures. The public report for the subdivision issued by the Bureau of Real Estate may also address this. This report is provided (or made available) to buyers at close of escrow.

[sako]

The title Company just revised the prem. title report, adding the "future" easement to the "Exception and Exclusion" part of the report.
I guess they wanted to cover themselves, is this legal?
I guess my due diligence work has reached it's end.