At this point, I think what you need is an engineer, not a lawyer. Get someone who can tell you whether you can build a structure above the pipe as-is, or if not, what would be required to have a structure that would be stable even if the pipe collapsed. [Remember, you already have pipes under your house for sewage and drinking water, so it’s not impossible to build above pipes]. Ask if the insurance company will pay for this (as long as you hire the engineer, not them).
Now you’ll know what your options are and what they’ll cost. After all, if you can get your garage built, you’re pretty much OK, right?
No, he’s not pretty much OK. The easement affects the property value, making it worth less than he thought it was worth when he purchased it. It’s not just about the garage.
Spoke with lawyer- his advice was to just wait to see what the title insurance company says about moving the pipe. Like everyone else, this is something he’s never seen before.
As for giving the insurer a compensation dollar amount, he said that I should look into how much more we’d have to spend on having the garage built (over just building it where we were planning). Add that to the loss of usable space, and we’d at least have a number to aim for. The drawback on that is that we weren’t planning on building the garage any time soon- but hey, maybe this’d be the impetus to get us to actually do it sooner. I’d still feel better letting the insurer give us a dollar value, first.
So… back to waiting.
I’m still surprised that this is a really rare thing to happen, that everyone we talk to says that it’s something they’ve never seen before. I’d think that this sort of thing would be a bit more common, but apparently it isn’t.
IANAL (but have read this thread with interest) and perhaps another figure that would come in handy is a rough guess on how much it would cost to move the pipe. You would then know what the insurance company’s top offer would be.
Well, there are a number of reasons why it’s uncommon for this to happen in the first place: developers are good at finding this sort of thing, easements are rarely unrecorded, and people who find giant pipes in their yards tend to assume they’re part of the city sewer system or whatever and ignore them.
There’s another good reason why it’s uncommon for people to know about this: most people with unrecorded pipes running through their properties will never find them.
True, we wouldn’t have known it if we hadn’t become good friends with our neighbors, who are dealing with the same thing. They wouldn’t have known if they hadn’t built the house, I imagine.
If it makes you feel less lonely, Lightnin’, this summer we bought a house that has turned out to have an undisclosed easement. The neighbors’ well is on our property (but powered by their house).
An unregistered easement is meaningless once the land is sold to a third party like Lightnin’. If it’s not on title it doesn’t exist.
So Lightnin’ could bring an action against the golf course, telling them to remove their pipe and stop trespassing on his land, as they would have no legal right to keep the pipe there.
If the golf course waved the unregistered easement at him in court, he could just say, “that’s of no legal effect. You don’t have an easement on my land. Now get your pipe out and cap it so it doesn’t flood my land.”
Isn’t that essentially the case now? From the way it’s described there is no registered easement. Why can’t Lightnin’ take the golf course to court? He’s tentatively decided not to because the insurance company seems to be willing to pick up the bill (although it remains to be seen just how sincere they really are), but I have the impression that he could.
True, the easement hasn’t been registered. But under common law, an easement didn’t have to be registered to be effective. Is this easement valid under the laws where **lightnin’**s house is located, even though it’s not been registered? No-one seems to know. That means that if Lightnin’ goes to court, that may be a live issue, with the golf course relying on the easement, and Lightnin’ having to show the easement is not valid.
The title insurance company seems to be willing to pay out because the title isn’t clear - that’s what title insurance is about. There appears to be a burden on **Lightnin’**s title that was not disclosed at the time of the sale, so title insurance steps in.
We don’t have title insurance companies under Torrens, because there is no such thing as an unregistered interest which can burden the title. If it’s not on title, it doesn’t exist.
Garages can have dirt floors or even gravel. Which means the buried pipe can still be accessed. you just met the easement requirements.
my storage building is on skids. it could be dragged out of the way if the Utility ever asserts their easement rights. So far they have never done so. The power lines work just fine.
build your garage as planned. leave a packed dirt floor in case they ever need to dig down to that pipe.
my grandparents had a garage similar to this. the dirt floor stayed dry and packed hard for seventy years. Obviously a new structure won’t be quite as rustic.
There are statutory easements for the routine utilities. They don’t need to be recorded because they are obvious, and in a sense temporary. If you go off the grid and get rid of your landline and power connections, then the easement disappears. The easement only exists to provide for service to the building.
It’s different for major power lines crossing private property. They have to be registered.
If there was a vendor disclosure statement with no mention of the pipe, and if there is evidence of the vendor and/or realtor having knowledge of the pipe, then you might have a shot against the vendor and/or realtor. One of my cases was successfully settled on that basis (well being dry not disclosed on the vendor disclosure statement despite the vendor and the family relative realtor both knowing of the problem).
