Property Line ?

[RebelSS]

Excellent points, LRG...especially these...

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.    

[leech~~]

5 hours ago, mabr said:

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.

Good Luck MA. Pretty sad to run into issues on a new place your excited about.

[LindellProStaf]

I agree 100% with the above opinion.  The seller hired a contractor and had him install the septic in the wrong place. Since he also owns the property that is the "wrong place" I think he needs to give you enough of that piece of property that the will make the septic location acceptable.  He needs to survey the property lines anyway it sounds like since he isn't sure where it is.

[Tom7227]

Lots of opinions here and as far as I can tell no one even knows what state, county or municipality it is in.  So whether it is an encroachment, whether you need an easement, or whether the system has to be X distance from a property line or X distance from a house or well is something that would be hard to determine.

Try to work with your realtor.  They have a legal duty to make the transaction work for you.  Find out what the law is in the area regarding distance from the mound to the lot line.  Find out how far the mound is from the lot line.  Could the mound be installed elsewhere on your lot in a way that conforms with current law?

The law in the area makes a lot of difference.  What were the terms of the sale - as is or were the implied and express warranties of a real estate transaction in place.  The law may be such that you closed on Z date time and place and accepted the property in that condition - your fault for not inspecting prior to close type of argument.

X as seller and the person who contacted with the installer has some responsibility.  The installer has some responsibility.  The cost may be high, it may be low.

Note that I am a retired Minnesota lawyer with a bit (not a lot) of knowledge in real estate law. 

[mabr]

On 4/6/2016 at 3:26 PM, Lip_Ripper Guy said:

 

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.    

I sure do appreciate the info Lil_Ripper. I have contacted the county and we pulled up the plat. You can see it very plain on the GPS photo they use that its going to be way over.  You can also see where the mowed area that has been maintained for years in this photo. They agreed with me that it is what was most likely the reason it was installed where it ended up. Im waiting on the inspector who signed off on the system to make the call on where the stopping point is for the System. The lady i spoke with was almost certain its considered the TOE of the mound. Which if it proves to be true its about 30-40 ft   encroaching on the other lot.  

 

So I'd love to just get this additional property for free vs just having an easement. But on what grounds would i have to legally insist that It needs to be owned by me?   My realtor asked if i would possibly want to buy it with a low ball offer.  Its going to cost the seller legal fees now and he might be willing to sell at a great price so I am considering that as well. 

[Lip_Ripper Guy]

I think you are now at the point where the best thing you can do is at least visit with an attorney to discuss your options.  You don't need to pursue the legal route right now, but at least go into this informed.  One hour worth of legal fees is worth 100x's more than 100 posts on a fishing themed message board.  

IANAL (I Am Not A Lawyer), but a route to potentially explore is lack of disclosure of an encroachment by the seller.  And another is making a claim on your title insurance policy (hopefully you bought title insurance), and having the title insurance pay (or help pay) to remedy the situation.  

Keep insisting that you own the property your septic is on.  You don't want the (future) neighboring owner driving a bulldozer across your mound system.    

Also, the easiest fix is to have you buy the neighboring lot.  That is probably part of the reason the brokerage is suggesting you buy it, which is at least partially a C.Y.A. move on their part.  If you buy it, the problem mostly goes away.  If you don't buy it, another fix needs to be found. 

[nofishfisherman]

I agree with LRG.  Now that you have more information it would be wise to discuss this with a lawyer and lay out the potential options ahead of you.  Like he said you don't necessarily need to follow through with the legal/lawyer route but at least you have your options defined and also some expert legal advice to help you make an informed decision as you go forward.  Then if the sellers drag their feet on finding a solution you are happy with then you can pull that lawyer into the fray to work on your behalf.

As a final resolution I would require ownership of the property the septic is on and also any additional land needed to make its placement legal in terms of set back from property line.  If it needs to be 50 feet from a property line and its over the line by 30 feet than I'd push for ownership of the additional 80 feet (whatever the acreage that turns out to be).  The lawyer should be able to help determine if obtaining that additional property for free is an option and what course you'd need to take to make that happen. If you do end up needing to pay for it then you should hold all the cards on price negotiations so give them a LOW offer.  They need to do something to remedy the situation.  If you give them an easy out like making a crazy low ball offer they may take it just to make the problem go away.  In the end its best for you and the seller to avoid an easement as it would likely make the neighboring property harder to sell.  So keep that in mind, a slightly smaller neighboring property is probably easier to sell than a larger property with an easement. 

[rundrave]

13 minutes ago, Lip_Ripper Guy said:

IANAL (I Am Not A Lawyer), but a route to potentially explore is lack of disclosure of an encroachment by the seller.  And another is making a claim on your title insurance policy (hopefully you bought title insurance), and having the title insurance pay (or help pay) to remedy the situation. 

I know I mentioned this earlier in my previous post but was there anything in your contract about mediation? When I bought my home I ended up doing this with the seller for non disclosure. It was not a fun process for any party but mediation saved either party from having to incur any expensive lawyer fees.

It was initiated by me the buyer and the process allowed for disputing parties to try and resolve our disagreements with the help of an impartial, trained third party, a mediator. After hearing everything form both sides, the mediator/attorney then made some recommendations and we settled right then and there and got everything in writing.

[mabr]

LRG yes we bought the title insurance, I found the doc where we initialed during closing saying we wanted it, but i wasnt able to find the contract stipulations. After looking at the amortization payment sheet I got sick all over again LOL.   

 

Should  I go to my credit union who also did the closing as well as the loan to purse the title insurance? 

 

RunDave, I cant remember whether we signed the agreement. I actually think i denied it but in all honesety im not sure. 

[delcecchi]

A septic mound is like 15K, right?  So  wouldn't the seller only be on the hook to correct the situation by getting the septic guys to put in a new septic in the right place, and removing the old new one?  Maybe plus a scosh for the inconvenience? 

So probably the seller isn't going to give up a 50K lot (or whatever, just a guess) in order to fix a 15k problem.  That's the way I see it... 

That's why maybe talking to a lawyer might be a good idea.  You need to know what you are entitled to as a fix.   If you can get the CU or the agent to cough up for a couple hours of a local real estate lawyer's time that would be even better. 

[Lip_Ripper Guy]

36 minutes ago, mabr said:

LRG yes we bought the title insurance, I found the doc where we initialed during closing saying we wanted it, but i wasnt able to find the contract stipulations. After looking at the amortization payment sheet I got sick all over again LOL.   

 

Should  I go to my credit union who also did the closing as well as the loan to purse the title insurance? 

 

RunDave, I cant remember whether we signed the agreement. I actually think i denied it but in all honesety im not sure. 

The document you are looking for is "Arbitration Disclosure".  It needs to be signed by all 4 parties (seller, buyer, listing agent, buyers agent) in order to be binding.  Most knowledgeable agents will encourage the parties involved to not sign it, as by agreeing to arbitration you give up your right to go to court.

Many title companies send out the actual title insurance policy several weeks after closing.  You may not have received it yet.  If it has been more than 2-3 months, give the credit union a call.     

Edited April 12, 2016 by Lip_Ripper Guy

[Tom7227]

Still not enough info for this type of advice

What is the legal setback requirement in this area?  From a lot line?  From a building

Is there room on your lot for a mound that meets the setback requirement?

Does the mound as currently built present problems for placing a building on the second lot?  If yes it is logical that the value of the second lot would be less. 

Does the mound as current built prevent the placement of any habitable structure? 

Does the mound as built prevent construction of a mound for the second lot?

If the answers fall your way on some of the above the second lot may have little or no value and you could consider not buying it at all.  If it is unbuildable why would you?

Was the mound in place at the time of closing?  If yes how long before closing was it in place?  If not then perhaps someone could tell me how there is liability on the part of the title insurance company.

Get some answers to some of these questions.  Find a lawyer knowledgeable in real estate in Alex and spend some money getting some advice.  $500 spent on a lawyer could save you thousands in the future and allow you to deal with this transaction from a position of power and knowledge.

Edited April 12, 2016 by Tom7227

[mabr]

58 minutes ago, Tom7227 said:

 

I dont know if i did any of this response correct but here it is anyways

 

What is the legal setback requirement in this area?  From a lot line?  From a building   Im pretty sure it is 10 ft from the property line. Septic system is 10 feet from lot line

Is there room on your lot for a mound that meets the setback requirement? Probably so, as someone mentioned it may be beneficial for person X to move my mound and install in another spot but it would be above the 15K mentioned I would guess about 1.5 times that. The lot is listed just under 100K

Does the mound as currently built present problems for placing a building on the second lot?  If yes it is logical that the value of the second lot would be less. A outbuilding could be placed on it easily and that would be why i would want the land

Does the mound as current built prevent the placement of any habitable structure? It very well could depending on where a proposed habitable structure was placed. I would have to measure the lot (1.2 Acres) but i would still think its possible to build a house on it.

Does the mound as built prevent construction of a mound for the second lot? Probably not but again without measuring its still unknown 

If the answers fall your way on some of the above the second lot may have little or no value and you could consider not buying it at all.  If it is unbuildable why would you?  Poll Barn and it would be more desirable for resale

Was the mound in place at the time of closing?  If yes how long before closing was it in place?  If not then perhaps someone could tell me how there is liability on the part of the title insurance company. Yes it was installed before we closed. It actually slowed the closing by 2 weeks from our original closing date. It was completed i believe 2-4 days prior to closing

Get some answers to some of these questions.  Find a lawyer knowledgeable in real estate in Alex and spend some money getting some advice.  $500 spent on a lawyer could save you thousands in the future and allow you to deal with this transaction from a position of power and knowledge. I believe this is the road im heading down. 

[delcecchi]

yep looks like 10 feet. 

http://www.co.douglas.mn.us/Uploads/Public/Documents/LRM/Septic/SSTS_Setbacks.pdf

Ok so 20k for the septic.  They aren't going to give you a 100k lot too cheap to save spending 20k on a new septic.... 

 

[BobT]

On 4/12/2016 at 0:09 PM, delcecchi said:

A septic mound is like 15K, right?  So  wouldn't the seller only be on the hook to correct the situation by getting the septic guys to put in a new septic in the right place, and removing the old new one?  Maybe plus a scosh for the inconvenience? 

So probably the seller isn't going to give up a 50K lot (or whatever, just a guess) in order to fix a 15k problem.  That's the way I see it... 

That's why maybe talking to a lawyer might be a good idea.  You need to know what you are entitled to as a fix.   If you can get the CU or the agent to cough up for a couple hours of a local real estate lawyer's time that would be even better. 

I suspect your estimating $15K for the entire system. If the tank is placed legally, then they would only have to move the drain field (mound). Much less costly than ripping up the whole thing and starting over.

[LindellProStaf]

Offer him $50,000 for the extra lot or else you want the land and any setback quantity of land free.  

I mean the land that the new septic is on and setback amount free that is.

I have had things like this happen before.  I think it is fun and a challenge.  Don't get mad just be clear with what you think you deserve.  Have him sign a Quit Claim deed for the amount of land that will satisfy the new legal description that comes from the surveyor.  The survey isn't going to cost much.  

[nofishfisherman]

If the prices being thrown around are accurate I'm guessing the cheapest solution could be for them to give you the needed land from the 2nd property.  Depending on how much it is it may not impact the price of the 2nd lot that much when they go to relist with the new reduced acreage.  I doubt the price of the 2nd lot would go down 20% after giving you that small amount of land so it could be cheaper and easier for the sellers to go that route than to pay $15-20,000 to have the septic moved, or losing $50,000 or whatever by selling the full lot on the cheap.  Simply giving you that small chunk of land would certainly be the easiest and most pain free of the options.  Being that the seller is out of state that might be a big factor depending on how much hassle he wants to deal with.

You can certainly push for whichever outcome you want but its also good to be realistic about what outcome makes the most sense for everyone.

[Tom7227]

http://www.duluthnewstribune.com/news/4009971-appeals-court-mulls-iron-range-garage-sawing-case

[SandraCavin]

Thanks for the link.