“The small town where Iâ€™ve lived for 15 years is now telling me that the â€œcity mainâ€? is really a private service line. The line connects at the manhole, crosses two private properties and ends at my house. There have been massive amounts of trouble and in the past when the city wouldnâ€™t clean it out I would pay to have a plumber make a visit. This would â€œcureâ€? the problem for the three homes involved – and has cost me a considerable sum.
Now the line has started leaking in my neighborâ€™s yard. The city wonâ€™t re-assume responsibility and is telling the neighbor to â€œfix it!â€? Over the years I have replaced all my outside sewer lines – this was before I realized the line ran across neighborsâ€™ yards and where the actual problem lays.
Now, if I should agree to help financially in this repair I want the neighbor to give me an easement so my house will always have access and rights to the line. (Why this wasnâ€™t done in the 50s when the house was built is beyond me, other than it was built by the then city manager and I believe he did what ever he wanted to do!! Sort of like the current city manager).
How do I go about getting an easement that would provide my home future protection? In the next year or two I want to sell the house and canâ€™t do it with the current situation. I tired of fighting with the city to provide a correct sewer line and that isnâ€™t going to happen, so I am thinking this is the next best solution.
If there should be an easement already in place, where would I find documents of record? Iâ€™ve looked thru every 323 pages of my abstract and there is no mention of the word easement for anything. Could it possibly be in my neighborâ€™s abstract? If so, how do I find out?
What do you think?”
Well, first off you need to know what the current situation is before you do anything to change it. You need to find out whether or not there’s an easement in place. Since an easement benefits one parcel of land and burdens another, it should be on record (in most places, with the county recorder) against both properties. But, since people occasionally make mistakes, you should check the record on your neighbor’s property as well as yours. Even more complicated, many places don’t index documents by property but only by grantor/grantee, so you may need to check the records for every name that’s owned your property and your neighbor’s all the way back to when the line was put in, and possibly earlier.
As you can guess, this can be a whole lot of work, and that’s why attorneys and title companies (depending on where you live) get paid.
Now, if there isn’t an easement of record, you may not be out of luck. You (or the prior owner(s) of the property) may have used the line in this way long enough that you’ve got a prescriptive easement. A prescriptive easement is a legal term for when you get legal rights to continue using someone else’s property as you have been doing in the past. The details of what qualifies you for one will vary from state to state, but usually it involves using someone else’s property without permission for a specified period of time.
The tricky part is the “without permission” part. Your question didn’t make it clear, but it sounds like this main is used by all three properties to connect to the city sewer system. If so, there might be implied permission which negates the prescriptive easement claim.
My recommendation is that you try talking to your neighbor first to see if you can work something out. Getting a recorded easement in exchange for chipping in for the current repair seems pretty reasonable to me, at least as a place to start. If your neighbor agrees, it’s just a matter of getting it drafted up and recorded. If not, you should probably consult with a real estate attorney who can let you know what your legal options are, given the specific facts of your situation.