Can I Take Legal Action Against The Builder’s Misinformation?

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

My builder told me that my lot had a “greenbelt” behind it so nothing would be built on that area. They charged extra for this lot as a premium lot. The greenbelt is actually a gas pipe with an easement that extends 25 feet onto my lot. Therefore, we can not put a fence around our whole lot as we intended. This is taking some of our use and enjoyment of the lot from us. We feel as if we were misinformed by the home builder. We would not have chosen this lot had we known that it was a gas pipe and not just a green belt. Could we take legal action against the home builder?

Probably not, but mainly because easements are usually disclosed as part of the title review before you purchase. As a general matter, sellers are required to disclose any “material facts” that they know about the property, and failure to disclose can be the basis for a lawsuit. However, the fact that the seller didn’t tell you is not a license to bury your head in the sand: facts that you (the buyer) know or could easily discover can’t support such a lawsuit because you had the opportunity to take them into account before buying.

I’m assuming that the easement was listed on the title report you got during the escrow period. If it was, then the fact that the seller didn’t tell you doesn’t matter. If, on the other hand, it wasn’t in the report, then some further investigation is warranted to discover why you weren’t informed, and who is responsible.