Rights of way make some
bad surprises
CHRIS STEPHENS
REAL ESTATE
(Published: August 1, 2004)
Usually, legal items that affect real estate are
documented in the State Recorder's office, which makes it possible to find which
items affect what property. These typically include debt secured by the real
estate, easements such as for utilities, any items contained in the document
transferring the property from government to a private owner (known as the
patent), unpaid taxes and any other liens. Title companies base their title
insurance coverage largely on these government records.
Rights of way provide rights to cross a property in a
specific location and most are recorded in the title -- except for the three
rights-of-way items described below. This means that you will not know that one
of these rights of way is across your property by looking at the title records,
unless the title company has addressed it in the title report.
Unrecorded rights of way could be a rude surprise, as it was for the owners of property along the Old Seward Highway south of Tudor Road when the road was widened in the 1980s. The state exercised its rights under what is called a public land order and simply took the land needed for the road widening with no compensation to the owners.
The PLO in Alaska came about in 1949 when the U.S. Department of the Interior reserved rights of way for the federal government along then-existing roads, prohibiting these areas from being transferred to private ownership (patented). This was done to provide land for future expansion of these roads. Subsequent patents were obtained but did not note these reservations in the public record. The federal government transferred all its road rights of way, including the PLO, to Alaska when it became a state.
The PLOs of most concern in Anchorage are 150 feet either side of the center lines of the Old Seward Highway and the Old Glenn Highway. However, a property along any long-existing roadway may be affected by a PLO.
The taking mentioned above for the widening of the Old Seward Highway resulted in a lawsuit that went all the way to the Alaska Supreme Court. The court ruled that if the land was patented before the PLO, then the PLO does not affect the property. But if the land was patented after the PLO, it does affect the property.
The second type of unrecorded right of way is a section line easement. Much of the United States is divided into 1-mile squares called sections, as in a checkerboard. The lines forming the sections are section lines, and along many of the borders of these section lines is a road easement.
Easements of 33 feet are required under federal law and 50-foot easements under state law. Exceptions occasionally occur, depending on what law was in effect when the land was patented.
There have been instances when buildings constructed on or adjacent to a section line easement were later taken down when the government exercised its rights under the easement. The lesson: don't build on or next to the section line.
The third and most bizarre type of right of way is called RS2477, which refers to the federal statute preserving public access to established trails with rights of way 100 feet wide. This right was transferred to Alaska when it became a state.
The RS2477 rights of way are based on historical use, and anyone who has been in Alaska any length of time knows there is very little certainty to the existence or location of any of these.
The state has claimed access across federal land in many locations under these rights of way. So did the Pilgrim family in the highly reported incidence when they bulldozed a trail across national park land to their property near McCarthy. The Iditarod Trail falls under RS2477 rights of way, only the exact location of the trail sometimes changes, so it is hard to know just where the right of way is.
The state attempted to define the location of RS2477 rights of way in 1998 and even recorded some. However, due to strong public outcry, because the location of these trails was so uncertain, the state stopped recording them. There are probably only a few at most in the Anchorage Bowl area.
If you think any of these unrecorded rights of way could affect your property, review the title insurance policy for your property and contact the state Division of Lands or the title company that issued the policy.
Chris Stephens, CCIM, is a local associate broker specializing in commercial and investment real estate. His opinion column appears every fourth Sunday.