Undisclosed easement on newly-bought house

In My Humble Opinion
1

First off- ya ain’t my lawyer.

Okay, so I’m in a bit of a situation with the house we bought last year. We found a great home with a short commute time, and at a good price last November. The sellers were being represented by the wife’s mother, who is a licensed real estate agent. The garage is a bit small, so we’ve been planning on building a secondary garage out in the (large) back yard.

We’ve become very good friends with our immediate neighbors, who own a house with the exact same floorplan, built just after ours was. They’re the original owners of their house. Anyway, they told us that they’re currently going through an issue with an easement- there’s a drainage pipe that goes directly through the middle of their back yard. Oh, and it also goes through ours.

There’s no mention of the easement in the plat we received when we bought the place. It’s only through their own research that they even know about it- the pipe was put in to drain the local golf course’s ponds, and they filed the amended plat with the county. Problem is, the county doesn’t have that amended plat in their records. Basically, nobody really knows about the easement except the golf course… oh, and the previous owners.

The pipe wasn’t there originally- it was moved to the new location when the previous owners were having the house built. My neighbors, bless 'em, gave us copies of the various forms they’ve managed to find- one of them is the amended plat, the other is the contract the previous owners signed authorizing the moving of the pipe to its current location, directly through the middle of the yard.

So yeah, we’ve got a twenty-foot-wide easement running through our back yard, completely destroying our plans of putting in another garage. Or a pool. Or possibly even being able to plant trees.

Like I said, according to the contract, the previous owners clearly knew about the easement, but didn’t disclose it when they sold us the place. The seller’s real estate agent knew about it as well- she’s the wife’s mother, remember? And she lives just a few houses down the block…

I’ve filed a title claim with our title insurance, who say they’re looking into the matter. I expect we’ll get some sort of compensation- to my amateur eye, this looks pretty damning for the sellers and their mom/agent.

Is there anything else we should be doing? I don’t know if, given the title insurance file, whether I should also contact a lawyer. I also suspect that I have a legitimate complaint against mom/agent with the real estate board, but I dunno.

Any ideas?

2

You should have a claim against your title company. They will probably fight it. If you come to some sort of settlement with them, I highly doubt that you could claim additional damages from the realtor and or the seller, as your damages would be limited by the settlement from the title company.

Any sort of grievance you want to file against the realtor could be done through the state realtor regulator and/or the National Association of Realtors.

3

I have no suggestions as to what to do next. But (with the usual IANAL disclaimer) if the easement’s not recorded anywhere in the county land records, and there’s specifically no mention of it on your deed or the plat for your lot, then I don’t see how anyone can say an easement exists.

If the golf course got an informal OK from the previous owners - hell, even if they got a signed contract OKing the pipeline through what is now your lot - I don’t see how that’s binding on you, in the absence of any recorded document that a properly done title search should have turned up.

So either there was a fail in the title search (in which case your title insurance company will have to cough up some dough, and in your shoes I’d want a lawyer to represent me in negotiating how much, exactly, they should pay you), or the title search was done correctly, turned up nothing, and the golf course owners can take their drainage pipe and stick it where the sun don’t shine. (OK, a different place where the sun don’t shine than it’s in now.)

4

You might want to ask the title company if there’s an actual easement if there’s nothing on file with the County. Are they claiming that the County lost it? Or did they fail to record it? IANAL, but if they haven’t recorded it yet, they may not be able to because they no longer have the signature of the owner of the property.

5

Well, I went by the county to get the plat for myself, and it shows the version I got- with no easement. That’s the one they got from the subdivision- apparently, the only one on record. So yeah, it seems to me as if we should be able to just act as if there’s no easement at all- because officially, there ain’t one. The only plat that shows the easement is the one held by the golf course. It seems to me that the title company did their job correctly- there’s no other, more accurate plat to be found.

Would I be able to demand that the golf course move the pipe, do you think? It’s still an active pipe- like I said, it drains the ponds from the golf course. In its original location, it was responsible for flooding my house’s basement (which is why it was moved).

The whole thing seems pretty shady to me, personally.

The guy up the hill seems even more screwed than I am- the pipe runs directly underneath his house. Not sure how he’s even got a basement- they must have raised the foundation a bit to clear the pipe.

6

It looks as though the golf course holds the only copy of the “real” plat. They say that they recorded it, but there’s no record of it with the county.

7

Get a real estate attorney.

8

I have no idea if this makes a difference but are you in one of those “golf communities” ie were the course and houses built around the same time by the same developer? Is there a Homeowners Association? I just wonder if some other agreement might be in place that gives the golf course extra rights.

I am pretty ignorant of real estate matters so sorry if that’s a dumb question.

9

Seconded. It sounds like the golf course is cutting corners. Here’s my guess: the golf course wanted to lay the pipe in a convenient location, so they drew up a new plat and tried to get an easement. This was either rejected by the town or never approved for whatever reason. So they did it anyway, probably by paying off the former property owners to look the other way.

10

As near as I’ve been able to put together, the neighborhood and the golf course were built around the same time. My house is a lot newer- it’s only about four years old, and was built on an empty lot in the middle of the neighborhood. There’s no HOA.

11

You seem to be talking about two different plats–one on file officially at the county , one in the office of the golf course. Check both of the plats for the final, official signatures, rubber stamps, seals, etc, and the date. I doubt if both of the plats are legally binding.
I’d bet that the copy in the golf club’s office looks nice and pretty…but lacks the final stamp of approval that converts it from an engineer’s proposal it into a binding legal document.

The easement is just lines drawn on paper–and , of course, if it is legal, than it may destroy your plans for your yard. But even if it is not legal, your plans may still be destroyed— not just by lines drawn on paper, but by the physical situation. Apparently, there is a pipe buried there, and you say it “drains” the pond—to where? How much water flows thru it? What is the angle of slope of the pipe? Can it be moved? If you build (or even plant trees) there, what will that to do to the drainage situation? You could end up with serious flooding problems.
You not only need a lawyer, you need a civil engineer…now.

12

I’d say the OP just needs the lawyer. If the golf course has no right to be running a pipe under his property, the golf course is the entity that needs a civil engineer, in order to find a new route for that pipe.

The OP should seek two things in his legal dealings with the golf course, assuming that the pipe really has no business being there:

  1. The golf course needs to re-route their drainage so that none of it flows through the pipe under the OP’s yard anymore, and
  2. the golf course needs to be on the hook for the cost of removal if the OP’s plans for his property someday necessitate removing some or all of the pipe.

Again, IANAL, but IMHO that would fall under the legal concept of ‘being made whole.’

13

If the golf course has a copy that’s been recorded, it will be stamped with a recordation date and have a number on it that the County can look up. In some counties, if you have that number you can look it up online.

It’s possible that it was recorded, but not cross-indexed with the original plat. Is the golf course willing to give you a copy?

If the easement was properly recorded, then the folks who sold you the house used a superceded deed.

14

How deep is the pipe? Is there a physical problem with just building the garage over the pipe? The problem comes if something goes bad with the pipe (and it probably won’t happen for decades). Could some arrangement be worked out so that if that happens they have to build a new route somewhere else, instead of destroying your garage?

15

I have nothing to add to the good advice already given, but I just subscribed to the thread because I’m really curious to find out whose plat is correct and what is the (eventual) resolution. Good luck!

16

Is there a Clerk and Recorder stamp on the plat? Along with the County Clerks signature and a recordation # (we call the reception numbers in my county)

If it has it, the County lost it. If it doesn’t, it’s either a copy of the plat before it was recorded, or it wasn’t recorded.

17

Looking at the two plats, it looks like the one we were given when we bought the house, the one that doesn’t have the easement, is the only one with a stamp. The other one shows the pipe running through the yard, but has no stamp. I’m checking with my neighbor to see exactly where he got that one, but I believe he got it from the golf course.

He said that *they *said that it was recorded with the county, but the county only shows the one without the easement.

18

A neighbor once built an outbuilding flush with our property line. He said, “Don’t bother calling the city, they already said it was OK.” I did and it wasn’t.

19

I’d like to think that these two have some liability as well.

20

This is a very technical legal question it is not something you get to vote on.

I love the Web…

p.s. - most boilerplate contracts have a standard clause that enjoins ‘heirs, successors, and assigns’.
Those terms are also not subject to popular votes on a message board.