Presented by Bill Bayert San Diego Workshop 14 February 2001

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Presented by Bill BayertSan Diego Workshop14
February 2001
INTERESTS ESTATES
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Caveat Emptor
DEED
Let the buyer beware, for he ought not be
ignorant of the nature of the property he is
buying. -Legal Maxim
Circa 1520 A.D.

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Definitions

• As used today, the term interest means the
  categories of real property estates examples
  include fee, easements, leaseholds. See para.
  12-9 of Chapter 12 to ER 405-1-12.
• As used today, the term estate means the
  written description of the specific type, nature,
  and extent of the real property rights required
  to support the construction, operation, or
  maintenance of a CW project.
• See para. 12-10 of Chapter
  12.
• 
  

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Today ...

• ... well cover 3 areas related to interests and
  estates
• A. Policy Requirements
• B. Approval of Exceptions
• C. Recurring Issues.
• 
  
• 
  

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A. Policy Requirements
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Standard Interests

• Para. 12-9 of Ch.12 identifies the interests
  generally required to be used in support of the
  listed purposes or features.
•  Examples
• FEE for dam sites public access areas
  environmental purposes incl. FWL mitigation,
  ecosystem restoration recreation fast land
  disposal areas for harbor projects.
• PERMANENT EASEMENTS for levees, flowage areas,
  roads.
• TEMPORARY EASEMENTS for work areas,
  construction-only borrow areas.

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Standard Estates

• The standard estates approved for use in either
  full Federal or cost shared projects are
  contained in Chapter 5 to ER 405-1-12. Once the
  appropriate interest is determined , the
  corresponding standard estate must be used .
  para. 12-10(b) of Ch. 12
•  Where there is no corresponding standard estate
  for the interest to be acquired, a non-standard
  estate (NSE) must be drafted and approved.
• para.
  12-10(c) of Ch. 12

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List of Standard Estates (1/5)

• As contained in Chapter 5 of the Real Estate
  Handbook
• (ER 405-1-12)
• 1. Fee
• 2. Fee Excepting and Subordinating Subsurface
  Minerals
• 3. Fee Excluding Minerals (With Restriction on
  Use of
• the Surface)

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List of Standard Estates (2/5)

• 4. Fee Excluding Minerals (With Restriction on
  Use of the Surface and Subordination to the Right
  to Flood)
• 5. Flowage Easement (Permanent Flooding)
• 6. Flowage Easement (Occasional Flooding)
• 7. Flowage Easement (Portions of Land to be
  Subjected to Permanent Inundation and Portions to
  be Subjected to Occasional Flooding)

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List of Standard Estates (3/5)

• 8. Channel Improvement Easement
• 9. Flood Protection Levee Easement
• 10. Drainage Ditch Easement
• 11. Road Easement
• 12. Railroad Easement

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List of Standard Estates (4/5)

• 13. Utility and/or Pipeline Easement
• 14. Borrow Easement
• 15. Temporary Work Area Easement
• 16. Temporary Easement for Exploration
• 17. Leasehold Estate

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List of Standard Estates (5/5)

• 18. Extinguishment of Rights in Cemetery or
• Extinguishment of Mineral Rights
• 19. Restrictive Easement
• 20. Rights of Entry for Survey and Exploration

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• B. Approval of Exceptions

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RECALL Standard Interests

• Para. 12-9 of Ch.12 identifies the interests
  generally required to be used in support of the
  listed purposes or features.
•  Examples
• FEE for dam sites public access areas
  environmental purposes incl. FWL mitigation,
  ecosystem restoration recreation fast land
  disposal areas for harbor projects.
• PERMANENT EASEMENTS for levees, flowage areas,
  roads.
• TEMPORARY EASEMENTS for work areas,
  construction-only borrow areas.

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Approval of Non-Standard Interests

• Unless approved as part of a Real Estate Plan
  (REP) contained in an approved decision document
  for the project, requests to deviate from
  application of the interests required must be
  forwarded in writing through Division to HQUSACE
  (ATTN CERE-AP) for coordination, review and
  approval.
• -para. 12-9 (e) of Ch. 12

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Approval of Non-StandardInterests Continuing
Authorities Program (CAP)

•  MSC Commanders have the authority to approve CAP
  projects without authority to redelegate (see
  para. F-11 of App. F to ER 1105-2-100, the
  Planning Guidance Notebook dated 22 April 2000).
  
•  IAW the rule contained in para. 12-9(e) of Ch.
  12, MSC Commanders can approve the use of a
  non-standard interest proposed and justified in
  the REP contained in the approved CAP decision
  document.
• Also see paragraph F-8 of App. F to ER
  1105-2-100 and paragraph F-2 for a list of the 9
  legislative authorities that make up the CAP.

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RECALL Standard Estates

• The standard estates approved for use in either
  full Federal or cost shared projects are
  contained in Chapter 5 to ER 405-1-12. Once the
  appropriate interest is determined, the
  corresponding standard estate must be used .
  para. 12-10(b) of Ch. 12
•  
• Where there is no corresponding standard estate
  for the interest to be acquired, a non-standard
  estate (NSE) must be drafted and approved.
• 
  para. 12-10(c) of Ch. 12

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Approval of NSEs para. 12-10(c) of Ch. 12

• The District Chief of RE may approve a NSE if
• it serves the intended purpose
• it substantially conforms with and does not
  materially deviate from the corresponding
  standard estate AND
• it does not increase the costs nor potential
  liability of the Government.
• Changing an estate from easement to fee, or vice
  versa, is NOT within the scope of the Districts
  approval authority.

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Approval of NSEs (cont.) para. 12-10(c) of Ch. 12

• Except as within the Districts authority to
  approve, HQ must approve all NSEs through one of
  two means
• inclusion of the proposed NSE in the REP of a
  decision document that is approved by HQ
• OR
  
• a written request for approval forwarded through
  Division to HQUSACE (ATTN CERE-C).

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C. Recurring Issues
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Recurring Issues (1/2)

• Multi-purpose acreage requirements
• (e.g.- flood control plus FWL mitigation or
  recreation)
• Sufficiency and availability of existing estates
• second generation projects
• existing Sponsor ownerships

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Recurring Issues (2/2)

• Tracts owned by a State are required but Sponsor
  is a local political entity
• Drafting of non-standard estates
• OMRRR coverage
• Program and project requirements met (but not
  exceeded)
• Multi-discipline approach needed in developing
  proposed NSEs
• Sufficiency under State law
• Life of the Project
• ad exemplum constituti singulares non trahi
  (exceptional things must not be taken for
  examples)
• Other

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