Home Seller Has Complicated Issue in Dealing with Easement on Property

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“What rights do I have to compel a neighbor to remove his drainage piping that exists outside the legally recorded easement on my property? I purchased a lakefront, unimproved lot from my neighbor in August, 2000 in Virginia. It had a drainage easement along the property line adjoining my neighbor’s lot but well outside the build-able area. Prior to selling me the property, the neighbor owned both my lot and the adjacent lot, where he built his home. He then installed a drainage system that carried rainwater from his lot into a series of pipes that converged and then ran into the lake across the lot that I subsequently bought. Prior to my purchasing the lot, my neighbor commissioned a survey  and recorded the easement that incorrectly reflected this underground piping. He then put the lot up for sale, whereupon I purchased it.  I decided to sell the lot in 2008, but when my realtor first showed the property, she was approached by the neighbor who informed her that the easement was “incorrect” in that it did not account for all the piping that was present on my land, and we would need to “correct” the legally recorded deed to show the actual piping locations prior to sale of my lot. He blamed the surveyor for the error and sent me a new deed to sign along with a request that it be recorded at the courthouse.

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My problem is that the new easement he desires more than doubles the existing easement and it extends into the build-able area of the lot. I declined to change the easeement, not knowing the impact on the value of the land and thought he could take it up with the buyer if it became an issue. I was unsuccessful in selling the lot with the initial realtor and approached another realtor in 2008. She informed me that she would need to disclose this situation to prospective buyers and I have been unable to sell the lot since this time. The value has dropped precipitously as overall real estate values declined in the area.  I want to try again to sell the lot, and prior to doing so have my neighbor relocate his piping to comply with the legally recorded easement. Can I compel him to do this? Is there a statute of limitations that would prevent me from litigating this matter, should he refuse? My neighbor did not inform me of this situation until 8 years after I purchased the property and it’s now been 2 years since I was informed.”

You have an interesting situation, and you’re probably not pleased to hear that, since “interesting” usually means “complicated,” which usually means “expensive.” The general rule is that when you have an easement in a specified area, you don’t have any rights outside of that specified area. Therefore, the pipes outside the easement area would be trespassing on your property.

BUT, there are many exceptions to the general rule.  A couple that spring to mind as possibly being applicable in this case: Since the properties used to be owned by the same person, that person can argue an “implied easement”: essentially saying, the pipes were there, and I just inadvertently forgot to specify them in the easement.  Obviously, I didn’t mean to create a trespass when I sold one property, so the law will imply an easement.

Another possible argument is that your neighbor has a prescriptive easement.  If he didn’t have an easement to begin with, using your property without permission for a long enough time might ripen into an enforceable right.  The exact details and time period vary from state to state.

A clever attorney can probably come up with some more arguments, once more facts are discovered.  The bottom line is, it’s not a simple situation you’re in, and the best (cheapest) thing to do is probably to come to some sort of arrangement with your neighbor, most likely allowing him to keep the pipes in place, unless they can be removed pretty easily.



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Author: House Attorney

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