Your Estoppel Is In The Mail

http://www.merriam-webster.com/dictionary/estoppel

Definition of ESTOPPEL:

a legal bar to alleging or denying a fact because of one's own previous actions or words to the contrary.

In other words...Everyone else stop asserting the truth. Ameren is going to decide for all of you property owners what the  truth is and should be, and should have been for decades even though it has been something else and everyone has accepted those truths (deeds) for decades.


Ameren sent out letters to the 1500 people a couple of weeks ago who have “encroaching structures”within the project boundary. But wait, I thought we breathed a sigh of relief that those homes were “okay, and were going to be protected”. Remember when the FERC came out with their November clarification and spelled out the fact that they were going to force Ameren to remove those homes from the project boundary? Well, that part is going to happen for the benefit of the FERC. The project boundary IS getting moved so the FERC no longer looks like the Big Bad Wolf forcing the tear down of thousands of innocent property owners homes….but, not so fast on your sigh of relief.

We must remember that over, and over, and over again we heard and read these words from Ameren:

“The proposed boundary change does not change current property ownership.”

See, a lot of unsuspecting property owners thought that this meant THEIR property ownership, thus what they understood to be their rights. WRONG. This has meant what Ameren perceives as their property rights all along.

Now that Ameren cannot claim that they "have to do this becuase of the FERC and their federal license requirements" ,  Ameren has to make sure that they continue to asssert that the property that you have been paying taxes on for decades is still theirs. They are doing this through the vehicle of an estoppel certificate that is going to be recorded against your property if you are one of the "encroaching structures". This is not a favor from Ameren. Let's make that clear. This is an ugly document that asserts their rights over yours.

 

When on the radio a couple a weeks ago about this issue, there were a some anonymous emailers who were upset because I was "scaring people" about what could happen. Well, here is the truth...if my house were an "encroaching structure" I would and should be very scared by the implications of this document. I would also be very angry because I KNOW the truth and KNOW that I have rights. I would choose not to be bullied. But, that is just me. For all of the rest of you who might want to slip into a state of "normalcy bias" and choose to believe Ameren is doing the right thing....then keep drinking the cool-aid. Ignorance is bliss, I guess.

 

The letter sent out to the homeowners, from Ameren, clearly explains this to you below:

---------------------------------------------------------------------------

March 5, 2012

Dear :

The Federal Energy Regulatory Commission (FERC) is considering Ameren Missouri's proposal to revise and reduce the FERC "project boundary" to address encroaching structures at Lake of the Ozarks. According to our research, your home or other structure may be located on property owned by Ameren Missouri.

Understand: Ameren is going to reduce the project boundary for the benefit of the FERC so your house is not ordered torn down, but they want for you to clearly remember that they assert your home is built on property Ameren still owns.

If the FERC boundary adjustment is approved, your home (or other improvements) would no longer be located within the project boundary and therefore would not be subject to shoreline management or FERC regulatory requirements.

However, what the estoppel certificate that they plan to record with your legal description will show that Ameren still contends that they own the ground that your home is built on.

Assuming that FERC grants our request, Ameren Missouri also intends to file in the Recorder of Deeds Office(s) for Camden, Miller, Benton and Morgan Counties the enclosed Estoppel Certificate which provides an additional measure of assurance and protection to you, clarifying your current and future use and enjoyment of your home. An aerial photograph of the shoreline and the revised project boundary from which you can locate your own residence can be viewed at http://detailmap.tgisites.com/

In particular, the Estoppel Certificate is:

This is Ameren’s explanation to you that you do not own the property that your house sits on (but you still get to pay taxes on it).

· A legally binding commitment by the Company that it will not take steps to remove existing structures located on Ameren Missouri property, provided that such structures are located outside the new project boundary.

· A legally binding commitment by the Company that it will not take steps to remove structures that may be constructed in the future on Ameren Missouri property provided, again, that such structures are located outside the new project boundary.

· Such commitment shall apply to all properties outside the project boundary that were acquired by Ameren Missouri's predecessor companies from the 1930s on including those properties acquired via condemnation.

Ameren Missouri's ownership and easement interests in lakefront property have been a matter of public record since the 1930s. It is regrettable that over time third parties purported to convey title to lakefront property that Ameren Missouri actually owns or created plats and surveys that omitted Ameren Missouri’s property interests. (Yoohoo Ameren, remember your own admission in your boundary line amendment request to the FERC where you say, “ UED reserved an easement for the benefit of its successors and assigns to allow access and construction within the UELP Property or Project boundary” Construction has been allowed in that easement area by your own admission since the beginning for all successors and assigns.

We are not requiring that homeowners revise their deeds to reflect Ameren Missouri's ownership. We believe the FERC order revising the boundary, coupled with the foregoing aspects of the Estoppel Certificate will provide clarification regarding improvements on these lands (The explicit clarification is that you do not own the grounds your home/improvements sit on. Ameren does and that there need be no further discussion....i.e. potential adverse possession suits).

 Furthermore, your interests in the property on which you have built a structure may be transferred freely without the consent or approval of Ameren Missouri (That is as long as a buyer understands that Ameren owns the property, and NOT you, and they are fine with it after full disclosure that what you are selling is NOT YOURS). Furthermore, consistent with past practice at the Lake of the Ozarks, Ameren Missouri's consent will not be required in the event a prospective property owner wishes to finance the acquisition of a home (IF a prospective buyer can get title insurance in order for the home to be marketable…that is the big question) located in part on our fee-owned property (Yet, another reminder the property is THEIRS and NOT YOURS).

Our Lake of the Ozark's office is always available to answer property owner questions at 573-365-9212.

Sincerely,

Mark C. Jordan

Ameren Services Company

Managing Supervisor Real Estate

----------------------------------------------------------------------------------------------------------------

So, what does this mean to you? Unfortunately if you got a letter like this one it is probably time to get advice from an attorney. Do not get warm fuzzies from this letter or the estoppels because you chose to be ignorant as to what those documents really mean. Know that a couple of local attorneys with title companies helped draft this document, so you may want to make sure the attorney you speak to had no part in the certificate being recorded against your property.

Learn about the adverse possession argument , and know that since you have not been asked to sign and agree to the terms of the estoppel, you have not consented to it. Know that you do have rights. Talk to your neighbors, and come up with a plan as to where you go from here.

http://www.lozstakeholders.blogspot.com/2011/12/adverse-possession-and-little-missouri.html

An attorney that I know has a complete understanding of this issue and has been researching it for years and watching this fiasco is Tim Sear. He could give you and your neighbors some insight where to go from here. His information is below.

Timothy J. Sear	6201 College Blvd. Suite 500 Overland Park, KS 66211
tsear@polsinelli.com	tel: 913.234.7402 fax: 913.451.6205

estoppel (n) - Bing Dictionary

es·top·pel [ e stópp'l ]

1. legal rule barring inconsistency: a legal rule that prevents somebody from stating a position inconsistent with one previously stated, especially when the earlier representation has been relied upon by others

The Plot Thickens...

As the FERC period for comment has ended lots of people have many questions about where we go from here.  I tell those people continue to grow our army with the truth…that is where we go from here.  Get the word out and wait for the marching orders.  We are not going anywhere.  We know how to fight and plan to.  As defenders of the Constitution (particularly the 5^th amendment) we won’t go quietly, that is a promise.

When revisiting some of the key phrases and words of the FERC and Ameren as of late, we must remember the truth that shadows these words and get the word out.

In a press release right after the first of the year from Jeff Green of Ameren addresses how swiftly Ameren is working to seek a solution for the “encroaching structures” built on the “Ameren Missouri-owned strip of land surrounding the Lake’s shoreline.

“The new FERC order clarifies the agency’s position regarding structures within the Project Boundary – an elevation-based, Ameren Missouri-owned strip of land surrounding the Lake’s shoreline.”

This statement from Ameren is offensive.  They double speak to the public over and over again.  They continually refer to the project boundary as property they own “fee simple”. ( Fee simple, by the way, means absolute ownership.)  Yet, they have NEVER paid a penny of taxes on this property and do not intend to.  Yes, you read that right.  On a recent radio debate between Jeff Green and myself on 2/2/2012 (  go here to listen:  http://www.krmsradio.com/mp3/FEB-2012-SHOWS/dircast.phpine ) we had the discussion on whether Ameren has ever paid taxes on the “Ameren Missouri-owned strip of land”.  He admitted that they do not because it is something that your deed says you, the property owner, have to do.  He is right.  However, what he failed to remember is that the part of the deed above  the part about the taxes says that you have the right “to use the surface of said lands, whether submerged or not, for any and all purposes what-so-ever, including the erection and maintenance of improvements thereon.”  As a condition of this easement it goes on to say you cannot interfere with the maintenance or operation of the dam and that you must pay your taxes on said improvements and lands.  Yet, isn’t it funny how Ameren has the power to take  one part of a deed and tell you that you have to abide by that part (the part about you paying their taxes), however, they can negate the part about what you get in exchange for paying those taxes (the easement that has been enjoyed for decades). 

See, even Ameren acknowledges to the FERC in their January 15, 2012 request for a boundary line amendment that they ALLOWED for those successors and assigns (you and me) to access and CONSTRUCT (gasp) in the project boundary. 

If you take the time to listen to that radio show I mentioned above you will find it interesting that Jeff Green argued with me that the easement did not mean “build” anything in the project boundary.  Someone may need to tell him to read Ameren’s own words in 2.1 of their request for the boundary amendment because it clearly spells out the FACT that UED (Union Electric) conveyed its ENTIRE OWNERSHIP INTEREST IN PORTIONS OF THE PROPERTIES BELOW VARIOUS ELEVATIONS…..(Most notable)UED RESERVED AN EASEMENT FOR THE BENEFIT OF ITS SUCCESSORS AND ASSIGNS TO ALLOW ACCESS AND CONSTRUCTION WITHIN THE PROJECT BOUNDARY.  Thus making any notion of an "encroachment" not possible because those structures constructed were ALLOWED to be there!!!  Ameren says so in this document.

Read it here: http://www.ameren.com/sites/aue/lakeoftheozarks/Documents/AmerenBoundaryAmendmentApplication-AppendixA.pdf

2.1 Fee Acquisition

UED purchased entire tracts of undeveloped and predominantly agricultural property. As the Dam and reservoir construction were completed, UED conveyed its entire ownership interest in portions of the properties below various elevations to UELP for the operations of the Project. In this conveyance, UED also granted UELP flooding easement over the remainder of its retained property. Significantly, and subject to certain limitations, UED reserved an easement for the benefit of its successors and assigns to allow access and construction within the UELP Property or Project boundary. Under an order from the Securities & Exchange Commission, UED sold the remainder of the property outside of the project boundary to private owners (UED's successors in title) subject to the flooding easement granted to UELP and conveyed to those successors the rights retained to allow access and construction on the lands within the Project boundary; however, such uses are subordinate to Project purposes.

Did you get that?  Ameren, of all things, mentions the FACT that they allowed access and construction within the project boundary.  Gasp.  They mentioned that FACT twice!  Twice in one paragraph!  So if they ALLOWED construction is there even such thing as an “encroachment”?  The answer is NO!

Why did they finally fess up to this you ask?  Because Ameren had not been forthcoming with these very relevant facts prior, the FERC looked like the Big Bad Wolf when they ordered the removal of 4500 structures, including homes, removed from the project boundary they were led to believe Ameren owned.  The public was outraged, thus the politicians in Washington, DC went on a head hunt.  Ameren went on record many times saying that they did not realize people were building in "their project boundary", but somehow that apparently was not that believable to the FERC.  When you look at how the FERC shredded Ameren in November of 2012 with an order they first scolded Ameren and forced them to tell the truth because things were not adding up for the FERC :

http://www.ferc.gov/media/news-releases/2011/2011-4/11-10-11-factsheet.asp

Factsheet:November10,2011
UnionElectricCompany
Docket No. P-459-310/Osage

“Over many years, Ameren failed to carry out this obligation. Ameren’s repeated failure to properly implement the terms of its license has allowed matters to get to the point where it does not even know exactly what structures have been built within the project boundary and whether they were authorized. FERC recognizes that Ameren’s failures have left local property owners in an extremely difficult position.”

The FERC goes on to say:

“Whatever property rights that owners have in lands within the boundaries of the Osage Project, whether conferred by deed, lease, easement or other conveyance, have not been and will not be altered by FERC’s actions today. Nothing in this order affects any previously issued valid permit authorizing a non-project use of project lands or waters.”

So the FERC acknowledges that “whatever property rights that owners have in lands within boundaries of the project (project boundary), have NOT BEEN and WILL NOT BE ALTERED BY FERC’S actions.  They make a point to say that NOTHING IN THIS ORDER AFFECTS ANY PREVIOUSLY ISSUED VALID PERMITS AUTHORIZING A NON-PROJECT USE OF PROJECT LANDS OR WATERS.”

So, the key word in the sentence here is “valid”.  What does the FERC consider “valid”?  Do they acknowledge the FACT in 2.1 that Ameren by their own admission in their words ,” reserved an easement for the benefit of its successors and assigns(you and me the property owner) to allow access and construction within the UELP Property or Project boundary”?   How much more “valid” does one get than Ameren acknowledging that this right was conveyed by their predecessor and has been enjoyed for decades as spelled out in the DEEDS? 

In the next edict of the FERC to Ameren they say:

“For structures without valid deeds, permits or easements, Ameren must determine whether they interfere with the Osage project. If they do, Ameren must take some action, such as redrawing the boundaries of the project, so those structures no longer are sitting on project lands. This would put them outside of the project boundaries and therefore outside of FERC jurisdiction. “

The question you ask?  What do they mean by “interfere with the Osage Project”?  Do they mean interfere with the operation and maintenance of the dam?  Or do they leave subjectivity to the interpretation of this sentence to Ameren?  Pretty vague if you ask me.  However, the FERC says Ameren MUST take some action!!  They say that Ameren must take those properties out of the project boundary and outside of the FERC jurisdiction. 

So as you start to get the warm fuzzy feeling about the FERC and how nice they are to watch out for you, we are jolted back to reality and left feeling confused yet again when Ameren makes a statement such as this in a recent press release:

“The proposed boundary change does not change current property ownership.”

Like I said, don’t breathe a sigh of relief just yet.  Understand that Ameren means their current property ownership, not yours.   Clearly by ignoring your easement, calling your home an "encroachment",  and “letting” you pay the taxes on “their” project boundary your rights have been changed.  Make no mistake about that.  Whether legal or not, that is where our opinion differs from Ameren.  We believe that Ameren has violated our 5^th amendment to the Constitution in taking the property from us that they need in order to implement the SMP.  However, we have not been compensated for the property we pay our taxes on and fairly compensated for the taking of the rights that our deeds have entitled us to for decades.    

In a recent article illustrating that Ameren has a LOAN in the hundreds of millions of dollars on the project boundary in your back yard, understand that Ameren cannot give away or change the rights on something they do not own.  They do not have that authority because they do not own that ground to change current property ownership.  This further complicates an already devastating situation here at our lake.  Ameren never brought this information to light.  An attorney found this information in a search.  When asked about the LOAN ON THE PROJECT BOUNDARY Ameren officials have admitted to it.

Read about the loan on the project boundary here:  http://lakebusjournal.com


There are petitions out there right now demanding the 660 contour and the respect for our property rights by acknowledging our deeds of record.   We want the 660 with quit claim deeds, and deeds of release from Ameren's bank.  That is the only way to know the property you pay taxes on is really yours.  We plan to gather thousands of signatures and have an incredible start.

Look for a link to the petition at www.lakeareaconservativeclub.org.  Also, you will find petitions at Lake Office Supply on highway 5 in Camdenton next to Save-A-Lot.  We have foot soldiers that always have them on their person, and you can always call Cliff for a location near you.  We have a game plan.  We are not going away.  We will stand united to protect our Constitution and what is ours.