Leach Bed Is Not On Our Property, Was Not Disclosed
hello...
i hope someone can help us with this...we just bought a house in dec,2003 when we bought it we thought the houses or yards butted up against each other...now after talking to the neighbors, we find out that there are easements between each house on the road that leads back to a field and belongs to a property investment group and we found out that our leach bed is not on our property at all but on the property of the investment group. shouldn't that have been disclosed at closing. i know wee should have realized this but we bought the house in the winter lots of snow . we now heard(rumors as of now) that the investment group is looking at selling and a housing development is coming in
any advice???? please help
did you get title insurance?
I would not see that as a disclosure issue esp. since it is underground and not seen. Maybe they didn't even know.
Plot map should have had it illustrated.
LOL. shhh don't let the easement holder know.
Maybe we should but a bullet list in a FAQ or somewhere to list"
This is what you check out for foreclosures
- for raw land
- for sub2
- commercial
- etc.
hi thanks for responding,
yes, we have title insurance....the easement holder already knows....he was the one that told me about the leach bed....he recommends that we have it moved to our property but said there is no hurry. i am sure this will end-up being a buyer beware but you would think they would have to tell you that the land between the houses is easements and that in all honesty we have no leachbed if the other property owner wanted to get mean. i mean after all it is his property this house has been a real eye opener for us.
That should have been in the title report / legal description. If it wasn't then you have a claim.
so who do i contact about this...where do i start...with the title insurance company or a lawyer. thanks again
I would start in this order. Just a suggestion.
check the legal description / title report and see if the easement is included.
Ask the TI person that about it.
Get an attorney
thanks!
we already checked the plot map that was given to us and it does not show the easements the only easement it shows is the road easement. isn't there different kinds of easements like right away and drainage etc. oh well i guess i will be calling the TI
thanks again
I don't know if this varies state to state, but all easement recordings need to include an updated plat map indication the easement.
I've seen plat maps showing easements and I've seen plat maps not showing easements. A land survey generally would show easements.
Putting that aside, the title report should have noted the existance of the easement. I would get a copy of that document-------and read it.
Unless I've completely misunderstood, the easement should have give the original owner of your property the right to place the leach field on the adjoining property. More, it should also give you the right to maintain the leach field on that abutting property. So, (if this is correct) you have nothing to worry about.
The easement runs with the land and cannot be extinguished by the adjoining property holder. If I was him, I'd like you to get your damn septic field off my property-but I have no legal basis for that desire.
read all prior deeds. there might be a paragraph in one somewhere back the line that grants the easements. new deeds probably state something to the effect of "under and subject to the covenants, conditions and
restrictions of record." altlhough if drafted meticulously the easement clause would be carried over so it's not easily missed. if it's anywhere in a prior deed, it should be listed on your title policy. does any actually read their policy? you want no 'exceptions'. if indicated in a prior deed and the title insurance company didn't review every prior deed & catch this you have a claim. If you know how to do the research yourself, that's where you start. if you don't know, go to your attorney and have him initially ask for the title search (get your evidence before letting them know there is a potential problem). in the future, always get a copy of the title search at closing, you paid for it and they wrote the insurance from that search and you've paid for the insurance too.
it's always good to know who is doing your title work. I know of several national 'vendor management' companies that hire just anybody to go do a title search, even when they've got no real experience but they only have to pay them about $30 or $40. so, even though the company is eventually responsible, you want a company that does good work the first time, you want no hassles if you're investing and reselling properties because you don't get paid to deal with hassles. you might potentially lose a great buyer if you can't deliver clear title and they don't want to wait. I know of an idiot in Ohio that is selling a book and she states that title abstractors don't need E&O insurance, that title searching is just copying public records like geneology research. again, be sure you know who is doing your work.
I went off on a rambling tangent here - sorry
sammyvegas.... i agree with you...if i were him i would want it off too and we want it off also...we want to be good neighbors not bad....but had we known about this before closing we would have rectified it or just not took the property. the plat map that we have is from a survey company and it does not show the easements. the leachfield is not in the easement part of the property it is on the actual adjoining property. so this is where our problem lies....was anyone responsible for telling us this at or before closing. we are going to contact our title insurance and if we don't get answers from them then we will contact an attorney.
I just re-read your post.
what it sounds like is the following (if I can draw it)
\\|\\
\\|\\
\\|\\
\\|\\
\\|\\
\\|\\
\\|\\
Where \\ is the easement and | the lot line. 1/2 the easement is ON the neighbors prop and 1/2 ON your property.
The the leach field is ON your property, but encroches on the easement.
Is that clear?
hi suek,
you can ramble all you want ....i hve been on the ohio recorder's site and it only goes back to the owners prior to us so i guess i would have to go to the court house
there was an exhibit attached to the deed statingt that our property being part of a 65 acre tract and it states all the points of beginning and ending but it does not state actual easements and no where so far does it say anything about our leachbed not being on our property.
thanks for the advice...this will be a great learning experience if nothing else.
cjmazur....
well kind of.... what they are saying is that there is land between all of the houses on our road (about 10 houses) and that land is easements for the land that lies behind us (about 52 acres that is farmed) and our leachbed is on the land behind us not in the easement way. it is clearly not on our property at all now that we have found our septic lid. there is about 1/4 of an acre that is connected to our land and everyone else that is not farmed due to trees etc.. so that is where our tank is
I misunderstood... That is a different story.
Since leach fields/beds aren't recorded how is someone to know?
If the original builder thought he'd be slick and just yse that empty field "out back" how was anyone to know?
So the location of the leach field is actually a different issue than the easements? Does the sewer line follow the easement? Why are these two issues in the same post?
Were the houses at the front of the lot (including yours) originally part of the larger parcel? When were they divided? Who built your house and was he related to the subdivider of the land?
The easement, if recorded, should appear on the survey.
detrow,
Depending upon the price, it might be easier to purchase the portion of property that has the setpic field rather than moving it.
Just a thought.
Robert
[addsig]
Quote:
On 2004-06-04 23:38, cjmazur wrote:
did you get title insurance?
I would not see that as a disclosure issue esp. since it is underground and not seen. Maybe they didn't even know.
Plot map should have had it illustrated.
LOL. shhh don't let the easement holder know.
Maybe we should but a bullet list in a FAQ or somewhere to list"
This is what you check out for foreclosures
- for raw land
- for sub2
- commercial
- etc.
cj,
I actually wanted to do this a few weeks ago, and posted a message in the forums. No takers. I would be willing to compile the list into a single readable document, if people were willing to submit to me their items.
I was thinking a Due Diligence Checklist kind of document. Your idea to break it out into the type of deal is good too.
Robert
[addsig]
commercialking,
these two issues are about the same house so that's why i put them in the same post
after talking to the neighbors they are telling us that the owner of the farm land originally meant for all of the land to be a housing development years ago and started building these homes on our road but them ran into drainage problems with the adjoining land
so he could not complete the development, so when he built these houses he put the septic tank on his land but now says it has to be moved.
the fact that the septic tank is not on our property was not noted anywhere when we bought the house and the fact that there are easements on both sides of our house was not disclosed in the survey or anywhere else when we closed on the property.
we thought the yards to all the houses in a row down our road butted up against each other but we now realize we only have 6ft of either side of our house and the rest belongs to this other guy. it is enough space to put another house or a road in and that is the newest thing there is talk about a development going in on that land now because they installed drainage a couple years back.
we talked to the guy about buying some of the property and he said "no"
thanks to everyone that has responded, we are going to start our research and contact an attorney tom. we will keep you updated
Ok, so now I have a clearer picture of the situation. Some of that is what I expected and I therefore have another round of questions and suggestions. I'm going to split my answer into two posts, this one on the septic issue and a second on the easement issue.
Is yours the only house in the group which has this septic problem? It sounds like the farmer/developer may have done this to everybody and that moving the leach field may be a problem "ran into drainage problems with the adjoining land" sounds to me like he had difficulty passing a perc test and it may not be possible to move the field easily.
"but now says it has to be moved."
This is the key-- the builder put the field there, failed to disclose the matter and now wants you to move it. Guess again. Assuming that everybody in the row is in the same situation what you want to do is file a class action suit. I'd ask the court to create a "common area" to be owned jointly by all the homeowners so affected which contains the septic fields. If you are the only one he did this to I'd ask the court to require him to pay for moving the field.
[ Edited by commercialking on Date 06/07/2004 ]
Just so it is clear.
Review the documents that you were given at the closing of your purchase. You might find that the easement was disclosed and you just missed it. Hence the problem is your problem in that case.
If you find there is no reference to it (you only need to check the title documents from the title company), then read the title insurance policy. See what it says is covered. Speak with the title company and ask them to check to see if there is a problem.
If the problem pre-existed your purchase the the title policy covers it let them decide how they will fix the problem. Then decide if you like the fix.
John
[addsig]
Ok, so turning to the "easement" issue.
So you looked at a row of houses along a road and thought that the lot lines fell between the houses. A sort of reasonable assumption. Your post seems to say that you got a survey but that the "easement" does not show up on the survey. Very unusual. Almost unheard of. An easement to be valid has to be recorded and it would take a pretty incompetent surveyor to miss one. If he did so you might have recourse against the surveyor.
So how much space does this easement take up? If there's "enough space to put another house . . . in". its gotta be at least 25 feet wide, more like 50. I gotta say it seems unlikely to me that it is an easement, especially since it not showing up on the survey. More likely its another lot.
You thought the lot was 25 or 50 feet wider than it is and you didn't notice this by looking at the survey? I am confused.
well here it is..... commercialking you are on the money....yes we were not very smart or observant...to be honest we did not take the time that we should have to look at that survey map that was shown to us nor did we check the auditors site
which is actually totally not like us but we got alittlle caught up in the holiday and thought we would surprise our kids with a new house for christmas...i guess we got the surprise.. totally our negligence on that part.....
the land between the houses are not easements...but merely land between the houses that the property owner behind all the houses owns. yes it is at least big enough to put a road on but probably not a house.
but when it comes to the septic.....it is totally on his land and the health department says there is no where on our property that it could be put seeing that our house pretty much takes up our whole lot. so our attorney says....don't do anything unless he brings a court order to move the septic then we will fight it....
which he doesn't think we would loose seeing how the guy behind us or should i say his father years ago(1956) built these houses for profit and knew he was putting the septic on his own land and had to know that our lot would not accomedate a septic on it.
there are at least three of us on this street that we can tell that has it on his property.
some good news...though we have called around to our township and county offices and they tell us he has not applied for any permits or rezoning and the the property is zoned agricultural only and the zoning guy said he wasn't sure that land would ever be able to be used anyother way . but never say never.
thanks to all that responded i really appreciate your time and energy that everyone gave to us. it is nice to have somewhere to come and get other opinions and feedback.
I don't think I'd take your attny's advice on this one. "Let sleeping dogs lie" has a way of bitting you in the ass when the dog does wake up. Especially because if you loose on this matter your house essentially has zero value (a house where you cannot flush the toilet becomes unattractive VERY quickly).
Let us suppose that the farmer/developer sold the property tomorrow. Unlike the situation if he were to further subdivide the land or elect to pull permits for buldings you wouldn't recieve any notice of such a move until it was done. Since there is no "public notice" of this septic tank situation the new buyer would have a pretty good case that you should remove the tank, which was a hidden encroachment on his land (after all, you couldn't see it, why do you expect him to?). Yes, you could then chase the guy who owns the land now to try to get your loss of value but thats not nearly as much fun the case you have now. Yes, the current owner may not be making any signs of doing this but the odds, as Comander Data used to say on Star Treck "are not zero". In this case they are not even close to zero.
The other thing you should check up on is the law of adverse possession in your state. If the seller has made no attempt to use his land between the houses since 1956 and if you and your neighbors have been mowing the grass and otherwise using this land for nigh onto 50 years now you may be able to file an adverse possession suit and get title to that property. Since you have not owned your piece for long enough to qualify for adverse possession status you will need to check the state law to see if you purchased the adverse possession rights of the prior owners when you purchased the house.
Find a more aggressive attny. Talk to the neighbors about joining forces to split the attnys fees and thus keep your costs down.
I agree as well. The only additional suggestion is persue it a bit w/ the title company.
If there's a statute of limitations on filing a claim, you may not want to let that dog lay.
Sounds like there is enough ifiness to have some legal recourse.
well we agree with you...we are looking for another attorney to talk to
we contacted the health dept and they came out to see if there was a place on our property to put a tank and there is not any where on our lot to have one , they also said the soil that the current one is in is unsuitable and we would not be allowed to put another one there even if we get control of that area so we will be left without anything. they said we might be able to do an arriation system but he wasn't sure if we could do one here or not. the nieghbors have one but when theirs was installed they said( i know hear say) that no one else would be able to have one on this road. i don't know why though
we are really at a loss we don't know where to go ... we have asked everyone but no one seems to think that we can do anything about it.. so if anyone knows of a good attorney in the ohio area let me know we sure could use one
oh yeah, the neighbors already tried to do the adverse possession and they lost...that was years ago well the jury voted for them but then the judge overturned the jury's ruling.
thanks again for all your posts
hi,
just thought i would keep everyone up to date...
we have talked to another attorney who is very familiar with my house and the whole situation because of the court case held years ago and he said that he feels we have definatley been defrauded and this should have been diclosed to us....
so we are going to talk to him next week but his only reserve is that the people that use to own our house might not have money to take or would be as he said uncollectable. so we have to decide if it will be worth the time and money in court and all the cost or try and rectify the problem ourself.
we'll see.....
i'll keep you posted
just a little update.... we went in to the attorney and after reviewing the papers he agrees that we have a case but he is concerned the the previous owners might not be collectable and if we find out that we can do the aeration system then we might be ahead to just do it and move on because by the time we get done with court and all his fees could end up being as much or more than the winnings but if the health dept says no then the house will be unusable and he says we go to court for the cost of the house , etc. but we could still end up losing everything and still owe the attorney his money and still not have a house to live in.
so in the meantime while we await the decision of the health department the attorney has sent a letter to the sellers and their realtor. we were told that the realtor is a close friend of the sellers, that is why he is included at this point.
so there it is.... we are still waiting......waiting..........waiting
the attorney says he does not even think we will get a response from either though.
Good luck on the alternate treatment system.