What Constitutes a Transfer of Ownership or Title?
A transfer of land or interest requires three things: an offer, an acceptance, and some form of consideration or compensation. It does not require public notice but is often recorded in public records via an instrument, document, or subdivision map. A transfer of land is referred to as “absolute fee” ownership or “fee title.” Fee ownership refers to a fee simple transfer, which constitutes the most complete exchange of ownership since it includes all rights, interests, and the land, free from any restrictions or encumbrances. The authority or right to use the land is a dedication, which only conveys an intent to use the property for a specific purpose.
How Right-of-Way Is Conveyed
Right-of-way is a generic term to describe the land area for public use, often for public street and utility purposes. It is not always conveyed as only a “right,” such as an easement or dedication; it is usually transferred to the public trust in the fee. Typically, subdivision maps such as Tract and Parcel Maps have specific wording to convey the subdivider’s interest. You can find this language in the Owner’s Statement on the map. The acceptance of the conveyance is in the Board of Supervisors or City Counsel Statements. A subdivision map is not used to transfer fee ownership, but exceptions exist. Record of Survey maps do not dedicate right of way, however, there are exceptions such as an indication to show an intent to dedicate. This, along with long- term use, could be considered a valid dedication.
Underlying Ownership vs. Fee Ownership
What is meant by “underlying ownership”? Each parcel of property has a bundle of rights and interests associated with the land. These rights can be conveyed individually or as a whole without transferring the land ownership. The underlying ownership is the land to which all the other rights and interests are attached. One of the principles is that any subdivider who has sold all the land adjoining the road is not interested in maintaining or improving the road. Therefore, it is the intent that the underlying interest in the roadway is transferred to the adjoining owner, even if it is not explicitly stated so. Fee ownership can be transferred to a third party while underlying ownership remains with the adjoining property owner, such as in a private homeowner association or municipality. This is evident when a right-of-way is abandoned or vacated, and reversionary rights return the title to the adjoining owner. In most cases where a fee ownership transfer includes a monetary consideration, the adjoining owner must pay to compensate for the fee title to be transferred back.
Who Is Liable for Mishaps & Maintenance?
In most cases, the adjoining property owner is responsible for anything that happens on or through their property. Unless there is a maintenance agreement or the roadway was accepted for maintenance by the City/County, it is the responsibility of the adjoining property owner to keep the right of way acceptable for public use. Typically, a roadway is improved to City/County standards before it is accepted for maintenance. This does not entirely relieve the adjoining owner of liability. The right of way must be kept free and clear and cannot be blocked, altered, or rendered unusable by the public. This means the adjoining owner cannot erect a gate, leave obstacles in the street, or hinder the thoroughfare for any extended period to either vehicles or pedestrians. Any negligent acts in this manner could result in liability on the adjoiners in case of an accident or other mishap.
