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Easement Not Disclosed. What do you think?

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RNCTN

Junior Member
What is the name of your state? TN

We purchased a home about 18 months ago. We bought this home specifically because of the size of the yard, location of the house (cul-de-sac), and a couple of other things. This home didnt have a pool, but we were going to put one in.

We recently discovered (during the pool company doing their stuff), that a pool cannot be put onto this property as a city sewer runs through the property. There is a 20ft easement and that is preventing us from being able to add the pool.

THIS IS NOT GOOD! We would have never even thought of purchasing this home had we known this information.

This was not disclosed to us at all. I have gone through signed/executed documents for the sale of this home to us (contract, title policy, closing documents, etc), and this is no where to be found where it was disclosed. The only thing the title policy says is standard language. It doesn't mention anything specifically about this easement. It does state something about what is recorded at the county office (again, standard language).

The county has a plat showing the easement. We got this three days ago. The title policy came 5 months after closing on the home, and with no copy of the plat.

We didnt know, it wasn't disclosed, and the city shows where the previous home owners called them to locate the lines about a month before they put the house on the market...hinting to me, they knew.

What would you do?
 


justalayman

Senior Member
The only thing the title policy says is standard language. It doesn't mention anything specifically about this easement. It does state something about what is recorded at the county office (again, standard language).
What do you mean when you say this (bolded). What is recorded at the county office?

The county has a plat showing the easement. We got this three days ago. The title policy came 5 months after closing on the home, and with no copy of the plat.
The policy may have come 3 days ago but you should have gotten a title report before closing. Did you?

We didnt know, it wasn't disclosed, and the city shows where the previous home owners called them to locate the lines about a month before they put the house on the market...hinting to me, they knew.
Would they be willing to testify to this?
If this is true, the sellers apparently did know. Do you have a disclosure form that states " no known easements or encroachments" or something similar?
 

GaAtty

Member
If the sellers knew and didn't disclose, then, as the saying goes, you either "rescind the contract or keep the contract and sue on the contract for damages.". In English, that means you can file a legal action to make them take back the property. Or you can keep the property and sue them for the damages, which in this case would be the difference in the value to you of the house with and without the easement. You cannot do both of these, you must pick one. On the other hand, this is whyyou should ALWAYS get a survey when you buy property. More than likely, a survey would have shown this easement. That was your mistake. A survey is only a few hundred dollars, next time don't skimp on that.
 

justalayman

Senior Member
GaAtty said:
If the sellers knew and didn't disclose, then, as the saying goes, you either "rescind the contract or keep the contract and sue on the contract for damages.". In English, that means you can file a legal action to make them take back the property. Or you can keep the property and sue them for the damages, which in this case would be the difference in the value to you of the house with and without the easement. You cannot do both of these, you must pick one. On the other hand, this is whyyou should ALWAYS get a survey when you buy property. More than likely, a survey would have shown this easement. That was your mistake. A survey is only a few hundred dollars, next time don't skimp on that.
I believe you speak of an ALTA survey here GaAtty. I'm surprised this was not required (at a minimum) by the mortgage lender. In my past RE dealings, this was always required.
 

jackleal

Junior Member
easement not......

Depending on how much exactly the pool would protrude over onto the sewer line, it is always worth talking to the city/county involved in the upkeep of that line. My storage shed is located directly over the sewer line. THe city rebuilt the sewer lines and said that they could probably use 45 degree fittings in order to go around my shed. The point is, they may work with you, really.
 

RNCTN

Junior Member
Thanks all for the information. To help with some information and the questions asked.

In the state of TN, it is written that a survey isn't required unless there has been a change to the property since the last transfer. The mortgage company didn't require for this reason and it wasn't even offered to us. In fact unless it is a new property (to be built on), or has had a change, it usually isn't something done here. I will know next time...believe me.

My understanding is that if we go to sue, everyone will have to testify.

There is nothing that we signed in any papers showing or saying there was an easement, not even in the title policy. The only way we knew was when the pool company went to get permits and found this for us. There is information on the public county record for the sewer easement on the property, but not disclosed or found during the title search. No one...if they do, they are property buyers often...ever goes to the city before a purchase and goes through county records before buying a property, how would we have known??

Thanks for all of the feedback, please continue to add if you would like. At this time, not sure the direction we will go. If a pool cannot go on the property, we will not be able to stay here. It is too important to us and our kids...it is a lifestyle for us.

Thanks again.
 

PghREA

Senior Member
If having a pool is that important to you, why did you not have a pool company check over the site before buying the home?

Pools are considered a liability in my neck of the woods but, the few buyers that wanted to put one in always had the area assessed by a pool company before putting an offer in on a home. (Just a suggestion that you may want to consider when buying your next home.)
 

jimmler

Member
RNCTN said:
Thanks all for the information. To help with some information and the questions asked.

In the state of TN, it is written that a survey isn't required unless there has been a change to the property since the last transfer. The mortgage company didn't require for this reason and it wasn't even offered to us. In fact unless it is a new property (to be built on), or has had a change, it usually isn't something done here. I will know next time...believe me.

My understanding is that if we go to sue, everyone will have to testify.

There is nothing that we signed in any papers showing or saying there was an easement, not even in the title policy. The only way we knew was when the pool company went to get permits and found this for us. There is information on the public county record for the sewer easement on the property, but not disclosed or found during the title search. No one...if they do, they are property buyers often...ever goes to the city before a purchase and goes through county records before buying a property, how would we have known??

Thanks for all of the feedback, please continue to add if you would like. At this time, not sure the direction we will go. If a pool cannot go on the property, we will not be able to stay here. It is too important to us and our kids...it is a lifestyle for us.

Thanks again.

You also should have done your due dilligence and researched the property before you bought it. It sounds like the sewer easement was already part of the public record, which you could have found out by taking a day off work and taking a trip to the county office building.

A survey is also something that would most likely have protected you, by showing you where your property lines are, and recorded easments. The bank does not require them because it protects your investment, they are more interested that there is a house on the lot, not where the lot is.

jimmler
I am not a lawyer, I have been in surveying since 1989.
 

jimmler

Member
justalayman said:
I believe you speak of an ALTA survey here GaAtty. I'm surprised this was not required (at a minimum) by the mortgage lender. In my past RE dealings, this was always required.
ALTA surveys are usually only required for commercial transactions, and are a very detailed survey that is of benefit to the buyer of a high dollar property. For most residential properties an ALTA would be overkill.

What they should have requested before they bought is a boundary survey, performed by a licensed surveyor in their state, and in most locations it would be more than a few hundred dollars, but well worth it to know what you are actually buying.
 
Last edited:

Gadfly

Senior Member
The survey is the whole issue. Even if not requried, now I hope you see why you should have one.

BTW, It is way too cold in TN for a pool. Get a hot tub.
 

justalayman

Senior Member
jimmler said:
ALTA surveys are usually only required for commercial transactions, and are a very detailed survey that is of benefit to the buyer of a high dollar property. For most residential properties an ALTA would be overkill.

What they should have requested before they bought is a boundary survey, performed by a licensed surveyor in their state, and in most locations it would be more than a few hundred dollars, but well worth it to know what you are actually buying.
Yep, you're right. I muffed it on this one.

Thanks for the correction.

Question to you jimmler;
Are you familiar with the term "mortgage survey"? The mortgage companies usually required no more than this in my area for residential purposes. It was a not staked, (on paper only) diagram of the property with buildings, fences, etc shown on the diagram. It did inlcude dimensions.
Is this what you are reffering to with a boundary survey and opposed to a "stake" survey where corner stakes are placed?

It would be nice to know the proper, correct, common name of the different types of surveys.

Is there a correct or proper or more commonly used term for this?
 

jimmler

Member
justalayman said:
Yep, you're right. I muffed it on this one.

Thanks for the correction.

Question to you jimmler;
Are you familiar with the term "mortgage survey"? The mortgage companies usually required no more than this in my area for residential purposes. It was a not staked, (on paper only) diagram of the property with buildings, fences, etc shown on the diagram. It did inlcude dimensions.
Is this what you are reffering to with a boundary survey and opposed to a "stake" survey where corner stakes are placed?

It would be nice to know the proper, correct, common name of the different types of surveys.

Is there a correct or proper or more commonly used term for this?

Very good questions, I am going to do a separate post on this.

To the original poster, good luck!
 

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