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Property Line ?


mabr

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Not sure where to post this so figured id start here.

I bought a house last summer. Part of the purchase agreement was the sale was dependent on the septic system passing inspection if it failed the seller was responsible to correct it. Well it failed and the seller had to install a new mound system. The design was completed by a 3rd party, it was installed by a state licensed professional who was a separate party as well. This all happened in about 2 weeks timeline which I was pretty impressed with. All inspections were completed, owner paid for the new septic system and we closed the sale like any normal property sale.  Note though: no survey was completed.

 

Last week i got an email from the sellers agent informing me my fish house was being stored on the sellers other lot and asked that i move it. It has always been known that the seller (out of state owner) owned this lot and it was for sale the same time i bought my house. The same realtor had both (house and separate lot) listings. After her email I got to looking for the property stakes and try to determine where my property line was. The property line was never a concern until we got her email. When we first started looking at the property we were TOLD the line was about where the lawn was being mowed BUT there were stakes at all 4 corners.  Last week I got the tape out and measure according to my plot drawing, and there are in fact  metal posts on my corners. Its always been known one was there but I believed it was to mark a tree stump to prevent hitting said stump with the lawn mower. About 50 from this post is where the lawn has been mowed as long as i have known the property.

 

OK, now to the question. After looking over the septic design, property plot etc the new septic system appears to have been installed directly on the property line. According to the approved and inspected septic design  the septic system needs to be a minimum distance of 50ft from the property line (which would be about where the lawn has always been mowed). I have a suspicion that the contractor who put the system in was told the same info we were, that the property line was where the mowed lawn ended and installed the septic system based on that info. In a rush to make sure we closed in time the selling realtor neglected to make sure where the property line was.  So now what? The way I look at it the seller was responsible to have the new septic installed. He paid for the design, installation and permits. He installed it on property he has always owned. By doing so did he give me that land? 

 

I know I'll need legal representation and I will. But before I do that, I wondered what others thought or how they would handle it. I think i'm going to start with my Credit Union (who i financed it with) and see what they say

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I would say the credit union is the one that screwed up as they now have a lien on property that you dont own .I would suspect in the end you will get an easement to allow the septic on the neighbors property until such time as it needs replacement , at that point it would need to be relocated . My experience as a real estate agent says the agent is can be held accountable, but the burden of proof is on you, and unless you have in writing a description of the property line it comes down to your word against his and all he has to do is deny he said that.

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I think getting a survey done is the first order of business.  You don't really know where the property line is, only that there is a piece of metal in the ground that you think may be a marker.  Once you have that you can proceed.

Did the same person, let's call the X, own the lot your have as well as the one next door?  Since X lives out of state but is concerned about what you have parked it is likely that X is preparing to market the second lot.  If X owns both then that X may have some responsibility to solve the mound problem (if there is a problem).  Who hired the contractor that did the mound you or X?  Whoever hired is the one who can force the contractor to deal with the problem (if there is a problem.)

Get the survey then get a lawyer to help you sort it out.  Once you have some information and advice start doing what needs to be done to get it sorted out.  If your efforts don't work then get the lawyer involved actively.

I will add that the problem may be a significant problem to X.  Assuming the mound is on the lot line (unknown) it then limits where a structure can be built on the second lot.  If it does create a limitation on the lot that is significant then X has a lot that is worth less than expected.

The more I try and sort it out the more I realize that you haven't given enough info to really know what is the problem or what possible solutions are available.

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From a buyers stand point you signed a contract to purchase the home. In the contract it should state square footage of the lot etc. If what you signed and paid for is not what you end up getting that should fall on the seller not the buyer.

did you both happen to agree on mediation should any issue arise? I know when I bought my home 6 years ago I was able to recoup some funds via a settlement after going to through mediation for non disclosure on the sellers part.

It wasn't a fun process for any party but hope it works out for you.

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I would first contact your realitor. It should be his or her job to sort this out with the seller and his agent. Sounds to me like they are more liable for this problem than you. And its usually not a good idea for you to talk to the seller or the agent. That's why you pay a realitor in the first place.

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I also would start by talking with your realtor to see what they can find out.  Let them do the digging and talking to the seller and their agent.  I think the first thing I'd push for is to have the seller pay to have both properties surveyed since there is now a question about where the seller had the septic installed.  It should have been done to start with.

The survey may answer all the questions if it determines the property lines are further a way from the septic making its location legal.   If it turns out that the septic is right up against the line or even over the line then you'll need to figure something out.  You may be able to get an easement for the septic.  If the location of the septic makes the neighboring property tough to sell maybe they work out a deal with you so you can buy the rest of the property that you thought you already owned (push for a really good deal since they screwed up, you'd have all the leverage in that case). 

Either way it sounds like the sellers are the ones mostly on the hook for this since they are the ones that put in the septic in potentially the wrong spot. 

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Tom, I like the X as seller easier to follow. Hopefully this helps

X- owned 2 lots side by side lot A and lot B, one with a house(lot A)  the other a bare lot.(lot B) they were both listed for sale at the same time, they each had there own MLS listing. 

X's Agent had both listings as the selling realtor. Lot B has been on the market the entire time. Now that its spring their realtor installed a new yard sign last week and her email followed. 

X had a 3rd party do the septic inspection as part of the sale, This inspection failed which forced X to install a new septic system if X wanted to sell lot A to me.  this was stipulated in my purchase agreement.,

X paid a licensed contractor to install new system. X's realtor knew this contractor and pulled some strings to get it completed in the time it took so that we could still have our closing as planned. 

Septic system was inspected by the county and passed, we closed  on July 31st.  

Both properties A + B  are rectangular in shape and are marked with a steel post at each corner. I measured the distance between posts with a tape and although i know its not 100% accurate its close enough where im comfortable to say where the lot lines are based on a clear line of page from corner to corner. I have a pretty good eye in judging a straight line over a distance, and its very clear the septic system is on the line around 50ft depending where the entire SYSTEM actually is beneath the surface. One of the clean out covers looks to be right on the line. 

 

Someone mentioned going to my Realtor which i plan to do. BUT both realtors are part of the same Agency so I wonder where my realtor loyalties will be.  I wonder, why aren't land surveys required when a property is sold?  Or at least verified there aren't going to be issues like this. 

Edited by mabr
wording
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19 minutes ago, mabr said:

Tom, I like the X as seller easier to follow. Hopefully this helps

X- owned 2 lots side by side lot A and lot B, one with a house(lot A)  the other a bare lot.(lot B) they were both listed for sale at the same time, they each had there own MLS listing. 

X's Agent had both listings as the selling realtor. Lot B has been on the market the entire time. Now that its spring their realtor installed a new yard sign last week and her email followed. 

X had a 3rd party do the septic inspection as part of the sale, This inspection failed which forced X to install a new septic system if X wanted to sell lot A to me.  this was stipulated in my purchase agreement.,

X paid a licensed contractor to install new system. X's realtor knew this contractor and pulled some strings to get it completed in the time it took so that we could still have our closing as planned. 

Septic system was inspected by the county and passed, we closed  on July 31st.  

Both properties A + B  are rectangular in shape and are marked with a steel post at each corner. I measured the distance between posts with a tape and although i know its not 100% accurate its close enough where im comfortable to say where the lot lines are based on a clear line of page from corner to corner. I have a pretty good eye in judging a straight line over a distance, and its very clear the septic system is on the line and over around 50ft depending where the entire SYSTEM actually is beneath the surface. One of the clean out covers looks to be right on the line. 

 

Someone mentioned going to my Realtor which i plan to do. BUT both realtors are part of the same Agency so I wonder where my realtor loyalties will be.  I wonder, why aren't land surveys required when a property is sold?  Or at least verified there aren't going to be issues like this. 

Garbage situation all around.  My biggest concern would be best case/worst case.  You get an easement for the septic.  Great that solves your problem short term.  But say the other lot gets sold and someone else parks something there, or brings equipment in to build.  Though not probably where they build they will likely move all over the lot while building.  What happens if they damage your septic?  are they at fault?  Likely, but then do you run into permanent hard feelings or worse yet another battle with the new owner?  With no house on lot B is it feasible to buy it out at a steal like stated above?  Land is always a good investment but I know sometimes that just not in the cards.

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I'm confused about something. If there is a zoning requirement with regard to how far from the property line the system needs to be, then the inspection should have determined whether or not the system was incorrectly located. I'd be asking how that could happen.

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4 hours ago, mabr said:

 

I cant say what happened. Douglas county was who did the inspection or at least i believe they were who was responsible. Ill see if my paper work says so when i get home tonight. 

I still go back to what i suspect happened. The yard has always been mowed past what I now know to be the property line. Its been the same owner for both lots, he has had a landscaping company take care of the yard forever because he lives out of state. Anyone looking at it would assume it was part of lot A based on visually looking at it, including me.

FYI, I wouldn't think that the lot size matters in the end, but each lot is about 1.5 acres so were not talking about making one lot to small to build on. Both lots are water front and that does limit the distance the septic had to be from the lake but i think there's enough cushion that way that it didn't force moving it on property B.

 

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Well I'm sure there not going to dig it up and move it. So one of 2 things can happen. Somehow make it legal and put it in writing that it is fine where it is being that close to the line. Or move the line to make it legal which may give you a little more property for free. Either way it is up to the agents and the seller to make it right and shouldn't cost you a dime. The only way I see that you would need a lawyer is if you don't agree with the out come. In the end all the liability is on the seller and agents.

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I'd just call the Realtor and tell them the deal on the phone, not in writing, and hopefully after some consideration will fix the problem by offering an acceptable solution.  Someone's going to blame someone but as long as it isn't you who cares. Be nice until being nice doesn't work.   

"When I was looking at my fish house you wrote me about I noticed the septic system your client had installed may be outside of my property.  Can you come and look at it and tell me what can be done to remedy this situation?  We love the new place and want to make sure there aren't any issues in you closing on the property when you sell it to who will be our new neighbor."

 

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Buy the empty lot.  If you deduct the price of an attorney, survey and all other related costs, subtract that from the cost of the lot and it'll be a good deal.  Plus the increased value of your home.

 

Edited by Kidd
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22 minutes ago, RebelSS said:

Trust a realty company representing both seller/buyer with a pertinent legal matter? NOT!!!!!!!!!

I'm an optimist and rather than call F Lee Bailey and the Late Johnny Cochran as step one I'd call and work it out myself.  If someone put the septic on the wrong piece of land it's not your fault and you can resolve this without having an attorney act as your mouth piece.  Do some homework call a realtor friend and ask them what to do and then do it.  OR

Sue the he!! out of the real estate agency!!!  Claim the dual representation form you signed was under duress and get it voided.  When you're in town and you see anyone from the agency you and the family can have that uncomfortable feeling.  Once a month you can open the attorney bill too?  "I talked to the attorney that much last month?"

I wish you speedy and sincere good luck on this unfortunate issue.

Edited by leechlake
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Unfortunately, optimism and working it out yerself doesn't always solve legal matters. That's when it comes back to bite ya in the azz. You don't need to spend a chunk of money to get initial, proper, advice from a good attorney, directing you how to proceed. No one said to go off on a tangent about hiring an expensive attorney to proceed with the entire matter. Getting pointed in the proper direction first is the intelligent pursuit of the matter. I'd do that first, along with a visit to the county surveyors office. That's free. They're also well-versed in those type of matters.

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most "good attorneys" also come with the bonus of being "expensive attorneys".   If you find a cheap good attorney good luck, he's an one-who-thinks-I-am-silly for charging less than his peers but at least he's a good attorney.  I will drop this now :)

 

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2 hours ago, RebelSS said:

Not unless ya know one. Most first consultations are free, and ethical attorneys will have no problem pointing you in the right direction.

Even if you have to pay a few hundred bucks for an hour of time, could be money well spent to learn your options.  But a call to the realtor asking if they know about the problem and if they would be up to paying a surveyor or locating the corners to see what happens.  and while you are talking to the realtor, ask what the county thinks about the situation.  I would think even with an easement you would have to get a variance of some kind.    Did you have a lawyer represent you at the closing or examine the papers, or don't folks do that any more? 

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Called my realtor last night, shes going to look into it and recommend that seller X's realtor have it surveyed. She was also going to talk to the county and see what there records show. She didn't seem the least bit concerned it would cost me anything. She said its not our fault the seller installed it on his other lot. She thought an easement is what will end up happening.

 

She want me to give her until next Tuesday to research it.  

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Seems like a fair and reasonable start to the process. 

I wouldn't be worried about this costing you anything, unless you end up having to involve a lawyer.  Then open up the checkbook.  For now I'd continue on the path you are on.  A lawyer would only need to be involved in the event you are unsatisfied with the proposed outcome and you need to escalate the situation.  Its a good option to keep in your back pocket in case you need it.

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A couple things, some info may be helpful, some may be too late...

My disclosure.  I am not an attorney, I don't even play one on TV.  This advise should not be construed as legal advise, and is not intended to interfere with any existing contractual representation you may or may not have with a Realtor.

1) If you purchased title insurance, you may have coverage on an encroachment issue, should there be one.  They (the title company) probably did a "sketch plan" of the page, which should be in with your initial title commitment.  This is only a sketch, and shouldn't be relied on as a survey, but you'll be able to see what their sketcher believes to be the approximate boundary lines and building locations.  Pay attention to the "exceptions" portion.  Sometimes a title company will try to sneak something in to absolve themselves from covering questionable issues.    

2) Relying on a verbal representation as to a location of a property line, is always a bad idea.  Especially if it comes from a Realtor.  And I am a Realtor.

2a) It is generally a good idea to get your own Realtor.  The listing agent/brokerage already has an established relationship with the seller when you come along.  Although contractually you are required to be treated as an equal, at best you have compromised representation.     

3) Survey's are relatively cheap.  I just had one done for about $400, including complete building page layout.  If you are buying anything other than a townhouse in an association, or a uniform size city lot in a newer neighborhood with a recorded plat, always have a survey done.  

4) Page 4 of the Purchase Agreement, line 151-153 "DIMENSIONS: Buyer acknowledges any dimensions, square footage or acreage of land or improvements provided by Seller, third party, or broker representing or assisting Seller are approximate.  Buyer shall verify the accuracy of information to Buyer's satisfaction, if material, at Buyer's sole cost and expense."

5) Page 1 of the septic disclosure, lines 37-42 pertain to your exact situation.  Verify the seller filled this out properly, or did an amended disclosure after the new septic was installed.  The key is that the seller would have had to have known the septic was installed across the boundary.

If they did put the septic across the lot line, insist that you want to own the property on which your septic is located, rather than have rights to it via an easement. 

Lastly, getting your own legal representation is a very good idea.  Don't sign anything from the seller or brokerage until an attorney (hired by you) has had an opportunity to review and discuss.  It may cost 2-5 hours of legal time, but it will be money well spent.    

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