Property enchroachment question 1.

[cag]

Slydog let me give you some very important advice ... I'm in a legal battle right now for a similar situation, I don't want to get in to detail's about the situation, but would like to share this with you. 1 Make sure you have all documentation regarding your situation if you don't, investigate to find it. 2 go and seek legal advice it's very important to find a lawyer that wont be there just to sell time .3 Make an effort to try to settle this matter peacefully, if this fails and it goes to court get your wife, yourself mentally ready. In our case we have already spent 42000 and we are not finish yet. ...cag

 

[Currmudgeon]

</font><font color="blue" class="small">( the former owner of both properties should be called upon to have the discrepancy regarding the sewer pipe documented. It seems to me that something was overlooked here, )</font>

That's my take on the history. There is no easement, because the former owner owned both properties, didn't need an easement, and probably didn't know where the property line was, anyway.

You and your neighbor both may have recourse against him.

</font><font color="blue" class="small">( talk with your real-estate lawyer only. do not talk to the neighbor, this can escalate to something fuzzy and unfriendly. figure out what you need to do to make it right, then have the lawyer make the statement, stay detached from the situation! )</font>

Good advice. My attorney once told me, "If you need to do anything unpleasant, blame it on me. I get paid for that, and they already hate me anyway. Don't you get personally involved." I had a couple of f(r)iends who had sued each other several times, and retained no animosity. The winner bought dinner. <Shrug>

It looks like there are a few things that need to be checked out and documented.

Where is the property line, the nearby buildings, the encroaching sewers, the encroaching road/parking, any ancillary damage like removed trees if it can be established in the field, and the locations of all recorded easements. Your surveyor can draw up a plat showing all this. It will be a valuable document.

What are the local regulations regarding setbacks of buildings, sewers, etc? The gummint may be your ally, here.

What was the previous owner’s responsibility in all this?

Then you can decide what you want to do, and how to go about it. You may have some options. It may be possible to have them remove the encroaching construction or abandon the encroaching sewer. If the construction is old enough, possibly just pre-dating the sale in this case, it may be grandfathered in. In that case, someone needs to pay you for the loss of value; maybe the seller. You should also, in that case, grant the neighbor as limited an easement as your lawyer can make work, record it at the courthouse, and enforce it.

It may be possible and desirable to grant them only a temporary easement, giving them a certain amount of time to remove their encroachments. That easement still has cash value to you, but it gives all parties a certain amount of flexibility. It may also be possible to tie any necessary temporary easements to the life of the improvements. IOW, they could keep their sewer, but they can’t fix it or replace it if it goes bad.

I concur with the recommendation of fencing the property line, and maintaining strict surveillance on it.

 

[slydog]

Thank you all...very good advice. I have a call in to the surveyor, and the title company and waiting for return calls. After speaking with them, I guess my next step will be to contact an attorney, which I absolutely despise doing myself as once they get involved the dollars start ticking off. I only paid 75k and I do not wish to spend another 75 over a few feet if is something I could talk to my neighbors about and work out amicably. However, reading MdBarbs thread and your posts put me off from that idea. With me personally, a letter from an attorney would put me totally on the defensive and make me wonder why in the world my neighbor didn't just come to me first so we could try and resolve this like neighbors. But I guess not everyone is of that mindset, and it is best to be prepared for the worst. prmmppphhhh...prrrmmmppphhhhh.....

Surveyor called while I was drumming my fingers... He suggests we also reshoot the offending lines and have them added to the survey. Guess that will be my next step.

I'll keep you posted.

 

[KubotaSteve]

After reading MdBarb's thread way back when, I put up a fence on my property line talked with a lawyer and re-checked the deed as to the wording. The lawyer stated that a lot of problems occur as to the interpretation of how some deeds are laid out. I tried to do all the prep work before the farmer sells his remaining land beside me. That way my fence is up and lets new owners see what is what. I keep the pins clearly marked as well as cleaned out for any new owners to see. I have an easement on the property that states for ingress and egress purposes. The lawyer stated that nothing can be done to that area such as paved without my permission.
I'll echo everyone else in saying talk to a lawyer but make sure it is a good lawyer!!!

 

[btolle]

As I said before, talk to the Title Company attorney first. That conversation won't cost you anything and it may turn out that it is the Title Company's problem and you can just let them handle it.

There is a lesson here for anyone who buys property in the future:

Have the property surveyed and instruct the surveyor to include any encroachments on the survey drawing.

Once you receive a copy of the survey PRIOR to closing look it over carefully and be absolutely sure what it says. And don't even consider closing until you have the survey in hand. If slydog had done this BEFORE closing he could have made the seller clear all this up prior to closing while it was still the seller's problem.

Folks, if there is anything you don't understand about a property transaction, STOP DEAD IN YOUR TRACKS until you get whatever it is cleared up. The time to have problems solved is BEFORE closing while it can be done on the seller's money.

Above all, if you can't get a clear and conscise explanation of something before closing take it to an Attorney. It is a whole lot cheaper to pay an Attorney for an hour or 2 of their time then than to have to pay them to straighten these things out later.

As a real estate agent I have seen lots of these problems.

Since I only represent buyers I make darn sure everything is taken care of PRIOR to closing even if it means the buyer has to walk away from the deal.

I have never seen a buyer walk away who later regretted it. I have seen lots of buyers who should have walked away but didn't, and every single one of them (including me once when I was a home buyer) regretted it!

Bill Tolle

 

[slydog]

I had a survey in hand when I first looked at the property, however to your credit, it wasn't one I had done to show encroachments. Untill you mentioned such a survey, I had no idea that you could even get one. I haven't read about that in any other thread I've seen on here, so hopefully this will educate some one else before they purchase property.

First I called the title insurance company....encroachments were an exclusion! (You were correct there Btolle, they said If there had been an ALTUS survey done, that exclusion would not have been in there.)

Two points: The cleanout was down in a ditch covered with brush. The new owner of the RV park had cleaned up around the area some, and the brush died off this winter. To have seen the cleanout at the time we looked at it before buying, I would have had to crawl through the briars on my belly.

When we first looked at the property, there were some old surveyor tapes on tree branches marking where I thought the line went through the woods at that point. Which were actually about 10 feet over on our property, so I actually ended up with more property than I thought I was buying on that side (just going by sight). So no I didn't have my own "encroachment" survey done, but I did have a survey to go by.

As far as not understanding, I did my homework and even spoke to an attorney prior to closing. There was absolutley nothing I was confused about or did not understand before closing. As a matter of fact, if the line had been completely buried under my property, the surveyor would never have seen it. He told me so himself. The problem arose because neither the seller, nor her REALTOR disclosed what I believe they knew about the encroachment.

Also JERRY G,
thank you for the referral! I spoke with one of the attorneys who told me exactly what I needed to do; spoke with me on the phone for about 15 minutes, and didn't charge me a penny. He advised me to have that line re-surveyed showing all improvements and encroachments, take them to the park owner and either ask them to relocate it, or work out a temporary easement with the understanding that should I ever want to improve that area, or if they needed to work on it, the line would have to be moved.

He said he would be happy to draw up the aggreement for me in a way to insure no future problems with adverse possesion or prescriptive easement. He acted like it was no big deal. He told me to just talk to the woman about the driveway first. I'll let yall know what if anything comes up with all this.

Thanks again for all your advice!

 

[buckle97]

I hope it works out for you peacefully, Sly. I am in the process of figuring out where all my property lines are and I'm sure that there are a few of the 8 adjoining landowners that have crossed the line, wherever it may be /forums/images/graemlins/shocked.gif!

Lawrence

 

[JerryG]

Ken,
Your welcome. Hope everything works out.

 

[LBrown59]

</font><font color="blue" class="small">( < 1*There is no easement, because the former owner owned both properties, didn't need an easement.
3*What are the local regulations regarding sewers?
It may be possible to have them remove the encroaching sewer.
4*It may be possible to have them remove the road/parking.
6*In that case, someone needs to pay you for the loss of value
7*in that case, grant the neighbor as limited an easement as your lawyer can make work
```````-Dennis``````` >)</font>
>::::::::::::::::::::::::::::
1*Seemes to me this would be the case.
3*I don't believe my county health department would approve a septic system that crossed the boundary line between 2 different parcels of land that are owned by 2 different parties.
The County health department there might make them remove the sewer line from slys property.
4*If the road / parking was there when sly made the deal on the land he has no right to make them remove it, however he does have the right to denie them using it.
6*If this was all ready on the property when sly made the purchase then sly suffered no loss of value.
The only way Sly could experience a loss or gain is if somebody did something to or on his land after he closed the deal and the property became his.
If theses things resulted in an increased value should Sly pay them for the value increase?
7*I don't see any need for Sly to grant them an easement through his property when the other party has direct access right from their own property.<

 

[slydog]

</font><font color="blue" class="small">( 1*Seemes to me this would be the case.
3*I don't believe my county health department would approve a septic system that crossed the boundary line between 2 different parcels of land that are owned by 2 different parties.
The County health department there might make them remove the sewer line from slys property.
4*If the road / parking was there when sly made the deal on the land he has no right to make them remove it, however he does have the right to denie them using it.
6*If this was all ready on the property when sly made the purchase then sly suffered no loss of value.
The only way Sly could experience a loss or gain is if somebody did something to or on his land after he closed the deal and the property became his.
If theses things resulted in an increased value should Sly pay them for the value increase?
7*I don't see any need for Sly to grant them an easement through his property when the other party has direct access right from their own property.)</font>

1-3 That is the case. I spoke with the surveyor and he told me "She told me where she wanted the line between the properties placed, and I put it where she asked." In other words, the woman who owned, divided, and sold us the property put the line down there, and did not allow for the dogleg in the sewer pipe. When the pipe was lain, probably about 5 or 6 years ago, the Health department didn't approve it crossing the line, because there was no line there at that time. The line was drawn well after the line was installed. There is no existing easement for it in any documents, be it surveys, sales contracts, closing statements, title insurance etc.

4-7 The drive/parking was just done in the last month or two. This issue is clear cut and there is no black and white. They encroached, I sent them a certified letter, and they are moving the drive. I just wanted to make it very clear to them what the "rules" were, as they were so bold it seemed they had to be totaly ignorant of any property rights issues, giving them the benefit of the doubt. I think they get the message now. The following post is the letter I sent.

 

[slydog]

Dear Ms XXXXXX,

We recently met with a surveyor to go over the boundary lines on our property in XXXXXXX. During that process we noticed that you had cleared a portion of our property outside of the allowed easement (25 feet from centerline of the existing gravel road) without our consent. It also appears you have started developing a gravel driveway, well into our property. We aren’t sure if your plans are to make this graveled area a permanent driveway or if it was a temporary solution for purposes of setting up your mobile home. We believe it to be mutually beneficial to contact you about this matter before you incur any additional expenses in building a driveway on our property.

If your plans are to use the newly graveled area as your driveway, we must regretfully inform you that we cannot allow this development to occur on our property and you will need to move it over onto your property. The easement allows for ingress and egress to your property to a point where your property line intersects the road easement, 25 feet from the centerline of the pre-existing gravel road. With approximately 175 feet of usable easement to your property, we do not feel it was necessary for you to have cleared any of our property to install your mobile home or establish a parking area. We request in the future that prior to cutting or clearing anything on our property, you obtain our express written approval.

We would appreciate your response to this letter to let us know your intentions in this matter. Please contact us as soon as possible by writing or calling us through the information in the heading of this letter.

Thanking you in advance for your prompt and careful attention to this matter, I remain,

Sincerely,

 

[LBrown59]

<font color="purple">1*When the pipe was laid, probably about 5 or 6 years ago, the Health department didn't approve it crossing the line, because there was no line there at that time.
2* The line was drawn well after the line was installed.
3*There is no existing easement for it .
4*. They encroached, The drive/parking was just done in the last month or two
SLY </font>
<font color="green">---------------------
1* Ok on that.
2*Which just may have caused the sewer to now be out of compliance requiring removal of the dog leg from your property.
I don't think any health department would permit a septic system to occupy 2 different parcels owned by 2 different parties; at least my county won't.
3*Most likely true. For one thing I doubt such an easement would be enforceable because it would probably violate septic regs.
4*Who is they? Are you tackling about the lady you bought the land from or someone she sold that parcel to?
</font>

 

[slydog]

</font><font color="blue" class="small">( 2*Which just may have caused the sewer to now be out of compliance requiring removal of the dog leg from your property.
I don't think any health department would permit a septic system to occupy 2 different parcels owned by 2 different parties; at least my county won't. )</font>

Good point. I will have to check that out.

</font><font color="blue" class="small">( 4*Who is they? Are you tackling about the lady you bought the land from or someone she sold that parcel to?)</font>

The people who bought the two acre plot from the woman who sold us the land. They are the ones who moved the home in and built the drive across our property.

Thanks again for everyones advice and help!

 

[LBrown59]

SLY; how ya comming on this?
Got things worked out yet?

 

[slydog]

</font><font color="blue" class="small">( SLY; how ya comming on this?
Got things worked out yet? )</font>

Per your suggestion, I called the Health Department septic guy back again. He said as far as their regs go, there was really nothing they could do about it as it wasn't a "new"installation that they would hence approve. I asked him about any pre installation drawings or plans, and he didn't have any locally so he put me in touch with the Regional guy in Little Rock, who also didn't have any copies of the plans. While talking with him I sort of came to the conclusion that those drawings really wouldnt be of much value to me anyway, as I'm sure they wouldn't be "plotted to the grid" so to speak, just probably at the most a line drawing showing approximate placement on the total land.

There is another issue which the surveyor found that I talked to him about. There "lagoon" at the bottom end of their land where this sewer line eventually ends up. The base of the levee for their lagoon extends 5 feet onto our property. That is something I don't see any possible solution to other than granting easement for it, or selling/leasing them that 5 feet of my land. He did say however, that this might be an issue for the.....sheet...can't remembert the State department that regulates septic lagoons. I have it written down on my other computer. It is some type of environmental department, but he did say they might have a problem with it being that close to our property.

He also said I needed to talk to my attorney about this. I think I will do that, before attempting to contact this other agency as I don't want to open a Pandora's box untill I get a few more ducks in a row. Either way, with this, I don't see how whatever decision that agency makes about it, it will be a financial problem for me.

I have held up contacting either the old or the new park owners untill I clarified a very important issue that was still uncertain untill I researched it on Monday. I needed to make sure there was an easement filed on the parks property for us to connect to an underground transformer about 10 feet on their side of the line.
(I know what some may think...well why should I not just swap easements in this case as I need to go 15 feet onto their property, and they are only 15 feet on my side. The problem I have here lies in that my electric will run underground directly across the line to the transformer 15 feet away. Their sewer line is 15 on my side of the line, but it runs possibly the full lenght of the land, approx 1000 feet. I see that as a big difference)

I am quite relieved to have found that at least the previous owner did file a certified copy of that easement with the power company; as I had gotten copies of all the deeds on all the property surrounding ours, and there was no easement included within the deed the new park owners recieved. The previous owner has no idea I got all these deeds, so I even know what she paid for all of this land. Not that it is really any of my business, nor that it's relevant, but she was totally deceptive about those figures too...SURPRISE!

Im slowly unravelling what appears to be a picture of slight deception on the previous owners partl; either that or what has to amount to total blind ingnorance. As the district guy in Little Rock stated, perhaps both or either of us new owners may have grounds for a lawsuit against the previous owner. But I am still in the fact finding, document gathering process, and being very methodical and thorough. I plan on putting together any possible proposals, solutions, etc. before I talk to my attorney again, and then plan on contacting the new owners with all the info, and discussing with them about us mutually contacting the previous owner as a team. I think it will come across much better if I can present it as an "Us" against her scenario, as I would have them as allies instead of enemies.

Btolle was correct in that I should have checked this out before I bought it, but in my defense I will have to say that I did get more than I thought I was getting. Unfortunately, I got a whole lot more, that I now have to get sorted out. I'll keep you posted. Thanks for asking!