New Neighbor Claims He Has Easement Agreement From Former Homeowner

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“I just bought a foreclosed home and my neighbor has told me the previous owner gave him easement for his septic. You can see where it was installed, as the ground has been freshly dug. It is about five feet from my pole barn. We live in a small town in northern Michigan where it is not uncommon for people to dig a hole and drop a fuel oil tank to hold their sewage. How do I find out if his septic is legal and up to code? And how do I find out if he has a legal easement, as my deed and title insurance shows no easement? Also, if he ever needs repairs or work done on it he would have to come across my yard to get to it as his lot is too small for heavy equipment to enter, his house takes up his whole lot which is 120×137.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

To find out whether the installation was up to code, first check to see if there was a permit pulled and signed off.  If there isn’t, then ask whether a permit is required for this sort of work.  I would suggest, unless you want to get off on the wrong foot with your neighbor, that you ask this question in general, rather than bringing non-permitted work to the attention of the building inspectors.

As for whether there is an easement, there probably isn’t if it wasn’t recorded against the property.  And in fact you may be able to get your title insurance company to help you with any dispute that arises with your neighbor.

But before you get into that, keep in mind that there may have been a private, non-recorded arrangement between the neighbors, and depending on your local laws that may become an enforceable right (even though it’s not recorded or even in writing) over time.  This is known as a prescriptive easement.

And even if your neighbor doesn’t qualify for that, a court might not require him to tear out the tank, on the grounds that it does him more harm than leaving it there would do to you.

All that having been said, IF your neighbor does have the right to have his tank there, that necessarily comes with the right to do what is reasonably necessary in order to maintain it, including crossing your property to do so.  He would, of course, be required to keep his impact
on your property to a minimum in doing so.

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Author: House Attorney

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