Title 5409.17 - Rights-Of-Way Acquisition Handbook

FOREST SERVICE HANDBOOK

Portland, Oregon

TITLE 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK

R6 Supplement No. 5409.17-91-2

Effective October 15, 1991

POSTING NOTICE. Supplements to this handbook are numbered consecutively. Check the last transmittal sheet received for this handbook to see that the above supplement number is in sequence. If not, obtain intervening supplement(s) at once from the Information Center. Do not post this supplement until the missing one(s) is received and posted. After posting, place the transmittal at the front of the title and retain until the first transmittal of the next calendar year is received.

The last R6 Supplement to this handbook was 5409.17-91-1 (5409.17,10).

Superseded New

Document Name (Number of Sheets)

5409.17,20 17

Page Code

21 thru 22.31--2 11

Digest:

This supplement reissues Chapter 20 to conform the format and structure of the Handbook to the requirements of electronic directive issuance.

Only minor changes to correct spelling, punctuation, and so forth have been made.

This supplement is available in the R6FSH Information Center Service in the same format as the paper copy.

/s/ John F. Butruille

JOHN F. BUTRUILLE

Regional Forester

FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK

R6 SUPPLEMENT 5409.17-91-2

EFFECTIVE 10/15/91

CHAPTER 20 - TITLE CLEARANCE AND APPROVAL

21 - TITLE EVIDENCE.

After the route is selected, and sometime before this decision is made, it is necessary to obtain accurate information on ownership and status of the non-Federal lands which will be crossed. Preliminary title evidence on these lands should be obtained as soon as the tracts or subdivisions to be crossed are known. An exact knowledge of ownership, encumbrances on the title, and conflicting third-party interests is necessary before beginning any survey or other work in connection with the right-of-way.

When existing development roads are to be improved or reconstructed, the status of the underlying right-of-way should be checked in the Forest status records. Additional interest may be needed to provide for expanded use.

In Region 6, Forests maintain a separate road right-of-way atlas. This atlas provides the complete status of existing roads (FSM 5491).

21.1 - Types of Title Evidence. Except in unusual cases, a policy of title insurance will be used in Region 6.

21.11 - Title Insurance. The only acceptable form is the American Land Title Association, U.S. Policy Form, 1963.

Often the insurance coverage required by the Attorney General will be less than the coverage provided under the title company's minimum rate. In these cases, the policy should be written for the maximum coverage provided by the minimum rate. When needed coverage exceeds minimum rate, the policy should be written for maximum coverage for the same rate class.

The policy of title insurance may serve as either a preliminary title instrument or as final title evidence. When the policy serves as a preliminary report, Schedule A may show the property as a fee-title ownership in the name of the grantor. The final policy will consist of the first (preliminary) policy supplemented by an endorsement subsequent to recording the deed. The endorsement will show the right-of-way as an easement and the title as vested in the United States of America.

When the preliminary title report reveals troublesome title defects, the case should be referred to the Unit of Lands before the deed is recorded.

Care should be exercised in placing orders. To avoid inflated charges, clearly combine all subdivisions under one ownership in one title insurance policy. Red tag urgent cases. Set up a system for paying charges promptly after receipt of title evidence.

Title company personnel have a great deal of expertise in title matters. Forest personnel should take advantage of this source of knowledge. Normally there is no extra charge for advice leading to a Policy of Title Insurance.

21.3 - Curing Title Defects. The cardinal rule for clearing title defects is to meet the requirements of the title company.

Exceptions cleared by recordable instruments should be removed from the policy following recordation. This may be done before issuance of the policy of title insurance or by later endorsement.

21.31 - Taxes. Treatment of current taxes is thoroughly covered in parent text and FSH 5409.17 section 21.4. Treatment of delinquent taxes in Oregon and Washington is as follows:

1. Interpretation of Delinquent Taxes and Tax Lien. Taxes become delinquent on the date on which interest is charged. Taxes become a lien on July 1 in Oregon, and when assessed in October (for the coming year) in Washington. Details of State tax management follow:

a. State of Oregon--Fiscal Year Basis for Property Taxes. Tax levy is determined in mid-summer for current fiscal year.

(1) Tax statements are issued in October or early November, based on levy determined in summer meeting.

(2) First one-third taxes due on November 15.

(3) Second one-third taxes due on February 15.

(4) Third one-third taxes due on May 15.

(5) Taxes are a lien as of July 1 of the fiscal year in which levied.

(6) Taxes become delinquent at the end of the quarter due.

b. State of Washington--Calendar Year Basis for Property Taxes. County courts meet in October each year for the purpose of levying taxes.

(1) Tax statements are issued in February, based on levy determined in previous October meetings.

(2) First one-half taxes due on April 30 of the year for which levied.

(3) Second one-half taxes due on October 31 of the year for which levied.

(4) Taxes are a lien as of the date of assessment in the month of October for the coming calendar year.

(5) Taxes are delinquent the day following due date.

(6) Taxes for entire year become delinquent if April 30 payment is not paid on time.

2. Clearing Delinquent Taxes by Authority from Grantor to Withhold Tax Payment from Consideration. Exhibit 01 may be used to clear a title exception created by a tax lien against the grantor's property provided the consideration is more than delinquent taxes. The Option for Easement also provides for clearing the tax lien (FSH 5409.17 section 11).

3. Clearing Delinquent Taxes by Payment of Segregated Amount. If the tax problem cannot be cured by an authorization by the grantor to withhold the entire amount of delinquent taxes, the Forest Supervisor may request the county assessor to prorate the taxes between the easement and fee. A small tax would remain to be paid. Some county assessors will, upon a request for proration, set the tax on a road easement at zero, and carry all the tax on the underlying land.

4.Clearing Delinquent Taxes by County Statement of Policy. Delinquent taxes may be waived when the county court of the county involved issues a letter to the Forest Service stating that tax-titles will except road easements granted the U.S. of America. The letter should state in essence that:

It will be the policy of County that when the county sells tax foreclosed property involving other than property within the limits of the city, the notice of sale and the deed will contain a provision that the conveyance is subject to recorded easements to the United States or any Government Agency thereof.

21.31 - Exhibit 01

AGREEMENT RE: PAYMENT OF TAXES

WHEREAS, (I) (We) and (husband and wife) (Widow) (Widower) desire to sell to the UNITED STATES OF AMERICA for the consideration of (a) right-of-way easement(s) for (a road) (roads) (the existing road(s)) over our land in list legal description of parcel(s) crossed):

And the United States of America desires to acquire title to said easement(s) free from objectional liens and encumbrances.

WHEREAS, said land is presently subject to certain tax liens, including

County taxes for the fiscal year 19 on said land which is described as parcel(s) number (number(s) from county tax rolls).

NOW, THEREFORE, for good and valuable consideration, (I) (We) agree (I) (We) will assume responsibility for the payment of all taxes assessed and levied against the above-described property(ies) and all taxes which may have become a lien upon said premises as of the date of the recording of the deed conveying the said right(s)-of-way to the UNITED STATES. In the event (I) (We) fail to pay said taxes when they shall have become due and payable or to remove existing tax liens against said land(s), the UNITED STATES is authorized to pay said taxes and deduct the amount of the same from the purchase price of said right(s)-of-way or to withhold from such purchase price an amount sufficient to ensure payment of said taxes or the removal of said tax liens from the land(s) subject to the easement(s), which amount so withheld shall be refunded to me (us) when evidence has been furnished that such taxes are been paid.

DATED this day of , 19 .

Witness:

21.32 - Mortgage Liens. If a waiver is not appropriate, the lien must be subordinated to the easement. Exhibit 01 provides a format for the Consent and Subordination Agreement when the mortgage holder does not have its own.

Where the mortgage holder requires payment, an agreement with the landowner to withhold funds to cover the payment may be necessary. Such agreements will be referred to the Regional Office for approval prior to execution.

A deed of trust is sometimes used instead of a mortgage. In the deed of trust the borrower conveys the property to a trustee as security for the indebtedness. When a deed of trust is subordinated to the easement, the Consent and Subordination Agreement is executed by the party loaning the money, not the trustee. A partial release needs to be signed by both, or a letter requesting the partial release written by the holder of the indebtedness.

21.32 - Exhibit 01

CONSENT AND SUBORDINATION AGREEMENT

WHEREAS, , hereinafter called the "CONSENTOR," has an interest in or lien upon the real property hereinafter described by virtue of

a (1) dated , 19 , and recorded , 19 ,

in Book , page , (2) Records of County, State of , and which interest or lien covers the following described real property situated in the County of , State of , to-wit:

WHEREAS, , hereinafter called the "GRANTOR," has conveyed to the United States of America, hereinafter called the "Grantee," an easement for right-of-way purposes over and across said real property by virtue of instrument dated , 19 , and recorded , 19 , in Book , page , County Records.

NOW, THEREFORE, the Consentor consents to the above mentioned conveyance from the Grantor to the Grantee and subordinates its interest in or lien upon the real property hereinbefore described to the rights of the Grantee in and to said real property by virtue of the above mentioned instrument.

IN WITNESS WHEREOF, the Consentor has caused this instrument to be executed this day of , 19 .

(Corporation Name)

by

Title

SEAL

Attest:

Secretary

ACKNOWLEDGMENT

(1) Insert type of document (trust deed, mortgage, and so forth).

(2) Show deed, mortgage, or delete line as appropriate.

21.34 - Outstanding Rights. Curative documents must be recorded if the outstanding right was recorded. Unless they conform to standard formats or have been previously approved, all curative documents should be referred to the Regional Office prior to signing or recording as the case may require.

1. Possessory Interests of Tenants, Lessees, and Squatters. Persons other than the owner may be in possession under a recorded agreement, an unrecorded agreement, or without an agreement or any kind.

Unrecorded interests may be cured by obtaining a consent worded somewhat as follows:

I (or we) hereby consent to the granting of a road right-of-way by (Landowner) to the United States of America by the said Grantor and occupied by me (or us) as a (lessee, tenant, or other) .

(Date) (Signature)

(Date) (Signature)

If the person or persons are in possession under a recorded agreement, use the Consent Agreement shown as exhibit 02.

2. Easements. If the easement obtained by the Forest Service encroaches upon or crosses a Bonneville Power Administration (BPA) easement, a letter similar to exhibit 01 should be sent to the BPA notifying them of our easement. A copy of the letter will be included in the title packet.

All other utility easements require a Consent Agreement. The format in exhibit 02 should normally be used; however, some utilities prefer to write their own. When it is necessary to move existing utilities, the arrangements should be included in the consent agreement.

Prior easements for roads must be subordinated so the Forest Service can exercise control over all traffic using the road. For this purpose the Consent and Subordination Agreement (FSH 5409.17 section 21.32) should be used. To provide the easement holder with a continued right to use the road, the following paragraph should be inserted immediately before the paragraph beginning "NOW, THEREFORE:"

WHEREAS, the Consentor, having a present right to use the road, reserves the right to continue to exercise the right to use said road, or segment thereof, subject to compliance with traffic control regulations and rules as provided in 36 CFR 261.12, and the bearing of road maintenance costs proportionate to use as provided in 36 CFR 212.7(d).

If the prior easement only crosses the Forest Service easement, subordination may not be required and the Consent Agreement (exhibit 02) could be used.

When the prior easement is to the BLM, a transfer of jurisdiction under Section V-A of the BLM-FS Interagency Right-of-Way and Road Use Agreement (FSM 5465.1) is required.

21.34 - Exhibit 01

National Forest

5460

(date)

Director, Division of Land Kahler Creek Rd #2712

Bonneville Power Administration Pack River Co., 10/3/78

P.O. Box 3621

Portland, OR 97208

Dear :

The U.S. Department of Agriculture, Forest Service has acquired an easement for the above named road which crosses your easements in section 8, T. 26 N., R. 17 E., W.M. in Chelan County, Washington.

The easements are identified as follows:

1. Recorded 12/17/47 as Auditor's No. 402521

2. Recorded 11/24/48 as Auditor's No. 415552

3. Recorded 5/9/69 as Auditor's No. 690354

The road is existing and no reconstruction is planned. For further information you should contact this office.

Sincerely,

Forest Supervisor

National Forest

21.34 - Exhibit 02

"CONSENT AGREEMENT"

WHEREAS, , hereinafter called the "CONSENTOR," by virtue of a (1) , dated , 19 , and recorded , 19 , in Book , at page , County records, has an interest in the following described real property situated in County, State of , to wit:

WHEREAS, (place description here), has conveyed to the United States of America, an easement for right-of-way purposes over and across said real property by virtue of instrument dated , 19 , and recorded , 19 , in Book , page ,

County Records.

NOW, THEREFORE, Consentor consents to the above mentioned conveyance

from to the United States upon the real property hereinbefore described.

IN WITNESS WHEREOF, the Consentor has caused this instrument to be executed this day of , 19 .

ACKNOWLEDGMENT

(1) Insert type of document (prior easement, lease, contract).

Forest Service consent to a third party to occupy portions of the acquired right-of-way should be given in the format of Exhibit 03.

21.34 - Exhibit 03

5460 (Case Designation)

CONSENT AGREEMENT

WHEREAS the United States of America, hereinafter called the Government, has an interest in the real property hereinafter described by virtue of right-of-way easement deed dated , and recorded (date), in Volume , page , in the records of County, (State) and which easement traverses the following described real property in the County of , State of to wit:

(place description here)

WHEREAS, , hereinafter called ( (1) ), has need to construct, operate, and maintain a (kind of improvement) and the necessary appurtenances thereto within the Government's easement.

NOW THEREFORE, the Government consents to the construction, operation, and maintenance of (kind of improvement) and appurtenances thereto within the Government's easement, subject to the following conditions.

1. Construction will be in accordance with construction drawings submitted to and on file with the Government in ( ).

2. ( (1) ) shall repair all damage to National Forest roads caused

by ( ) in the construction, operation, and maintenance of said

(kind of improvement) and appurtenances.

3. This agreement is executed with the express understanding that should future reconstruction or maintenance of Government's road require the relocation of

the ( (kind of improvement) ) and appurtenances, such relocation will be done by ( (1) ) at its expense within sixty (60) days following a written request to relocate.

4. ( (1) ) shall indemnify and hold harmless the Government against all claims or liabilities for damage to life or property arising from ( ) acts or omissions in the construction, operation, and maintenance of said (kind of improvement) and appurtenances.

5. This Consent Agreement is issued on the condition that ( (1) ) has secured, or will secure, permission from the landowner(s).

(1) Acronym or abbreviated name.

21.34 - -Exhibit 03--Continued

IN WITNESS WHEREOF, the Government, by the Forest

Supervisor, National Forest, Pacific Northwest Region, Forest Service, Department of Agriculture, has caused this instrument to be executed

this day of , 19 .

UNITED STATES OF AMERICA

Forest Supervisor

National Forest

Pacific Northwest Region

Forest Service

Department of Agriculture

ACKNOWLEDGMENT

STATE OF )

) ss.

COUNTY OF )

On this day of , 19 , before me the undersigned a Notary Public, within and for said State, personally appeared , Forest

Supervisor, National Forest, Forest Service, Pacific Northwest Region, Forest Service, Department of Agriculture, and that said instrument was signed in behalf of the United States of America by its authority duly given and by him delivered as and for its act and deed. And he did further acknowledge that he executed said instrument as the free act and deed of the United States of America, for the purposes and consideration therein mentioned and set forth, and I do hereby certify.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year above written.

Notary Public in and for said

(Seal)State of

Residing at

My Commission expires

21.35 - Heirship and Probate Problems. Recommended action involving decedents' estates:

1. Assume a probate action has been started or will soon be started in the same State where the land lies.

a. Obtain a preliminary certificate of title on the right-of-way.

b. Appraise the value of the right-of-way desired. If the appraised value will not cover the legal costs to the owner of conveying title to the Government, an estimate of such costs should be submitted to the Regional Office.