After a new survey, my well is on the neighbor's land

[LadyFireCaptain]

What is the name of your state (only U.S. law)? CA

Our neighborhood (a rural area) was re-surveyed over 9 years ago and the property lines changed. We ended up with our well on the neighbor's property by 11 inches. At the time they wanted us to do a lot line adjustment, paying all of the costs and giving them $1,000. The bank wouldn't let them do it. Now we are trying to sell our house and they are demanding $5,000 or they will fence off the well. When the bank would not let them do a lot line adjustment the issue was dropped because we couldn't do anything. What can we do?

 

[OHRoadwarrior]

Consult a real estate lawyer locally. It seems the $5000 purchase is the cheapest solution since you did not handle it when it happened. Trying to sell your property with a "cloudy water" easement is going to depreciate it severely and likely prohibit anyone from obtaining a loan.

 

[LadyFireCaptain]

There wasn't anything to handle

The neighbor's bank would not allow him to sell us the land. The bank told me they would require a $5,000 deposit to look at the possibility and it was non refundable, no matter what the outcome was. They also said if they did allow it, the $1,000 he was asking would go to the bank, and he refused to do that. When I was talking to the bank, and they told me what the process was, including the deposit, they said it was doubtful that the bank would release the land. The man I was talking to said they would look at it and find there was a well on the property and see it as an asset an would not release the property. He said if it was him he wouldn't try because I would lose my $5,000 and get nothing for it. For the past 9 years we have continued to use the well without a problem. We had the well put in 12 years ago when the property lines showed it was on our land but the new survey moved the lines 6 feet, putting our well 11 inches onto the neighbor's property. They refuse to do an easement, even though we offered to pay them $500 for the 1 sq. ft the well is taking up from the property line. $500 for 1 sq ft. sounds like a pretty good deal for the easement. The land is unusable to them because of a garage on the property that blocks access to that area.

 

[STEPHAN]

How much did you pay for the well?

Do they have their own well?

Maybe they change their mind when you start getting bids for a new well and they realize that they might end up with nothing but a worthless well …

 

[NC Aggie]

Just drill a new well within your property boundaries and count your losses. The cost to drill a well and connect it to your house can certainly vary depending on site conditions, but I can't imagine it costing more than the hoops it sounds like you would have to jump through in order to sell the property with the existing well.

 

[justalayman]

As others have suggested, drilling a new well may be the best solution. Depending on where you are, $5k might not come close to the cost so call a couple well drillers familiar with the area and get a rough price.

And yes, a familiarity with the area is important. One familiar with the area should be able to tell you a realistic depth and ground conditions you will have to drill to and through. That is extremely important when getting an estimate of costs.

A new well will be a good selling point on top of getting rid of the encroachment issues.

If financing it before hand is an issue it can be included in the contract such that the money is escrowed from the proceeds of the sale or if the buyer is willing to deal with the neighbor, a simple discount of the selling price to account for the well issue is possible as well.

 

[154NH773]

Have you considered an easement instead of a lot line adjustment?
Would the bank allow him to grant an easement?
If so, how much would he want for that?

 

[LadyFireCaptain]

A friend and neighbor is a well driller and he said the well has to be at least 150 feet. He said if we would pay the first 100 feet he would do the 50 feet free to us. We have a friend and neighbor that is a well driller and he will to it for around $6,000. The other local well driller wants $11,000. It's sad because the well is 4 inches from the property line. The entire well lies within 1 ft from the line. I have found out that legally we automatically have a prescriptive easement because it has been more than 5 years. There is a question if the easement would transfer if we sell the house though. I told the realtor (who has a good relationship with the neighbors) that we will still give him $500 if he will sign a prescriptive easement (then it would transfer) for the one square foot. I can understand a problem if it was way out in his property, but this is all within 1 food of the line. So, where I left it is I will give him the money if he will do a prescriptive easement and it would transfer, or if I have to go to court and get a court ordered easement, I would not give him anything. He has also tried to sell his house and right now it causes a problem for both of us because both of us have to disclose there is a dispute. If he did the easement it wouldn't be a big deal to disclose it. Seems it's the best way out for both of us and we can't understand why he is having such a problem.

 

[154NH773]

The chances of a court granting a prescriptive easement is probably pretty good in your case, but you never know.
There would be some cost to going to court and even more if he, or his bank, fought you.

I think you are pursuing the best course by asking him for an easement (it wouldn't be called a prescriptive easement if he granted it, just an easement) and offering him $500.

I would have a lawyer write an easement and present it to him. The easement could say that if at any time the well had to be replaced, that it would be moved to your property and the easement would be extinguished.

Make sure the easement language gives you the right to service the well if necessary. Sometimes it requires equipment placed around the well to pull up the pump, etc. so be sure the easement language gives you enough room around the well casing and piping to service it.

I think he would be crazy not to accept the $500 for the easement, but he, or the bank, may have their reasons for not wanting an easement on their property.

 

[justalayman]

if the neighbor is accepting of the offer, fine. If he isn't, then the legal costs could outweigh the benefits.

 

[FarmerJ]

In a easement granted by the neighbor it may not be a bad idea to set a expiration if in the future the well fails then the easement expires and a new well must be drilled Other wise if you do drill a new well make sure you know how far back from the lot line the well must be. I am also wondering if a well driller could locate your current underground water line and electric for that well and drill close enough to the old one so they can re use those lines yet be far enough away to meet set back rules . ( I am curious who ordered the most recent survey? )

 

[OK-LL]

What is the name of your state (only U.S. law)? CA

Our neighborhood (a rural area) was re-surveyed over 9 years ago and the property lines changed. We ended up with our well on the neighbor's property by 11 inches. At the time they wanted us to do a lot line adjustment, paying all of the costs and giving them $1,000. The bank wouldn't let them do it. Now we are trying to sell our house and they are demanding $5,000 or they will fence off the well. When the bank would not let them do a lot line adjustment the issue was dropped because we couldn't do anything. What can we do?

I would start at the very beginning -- who surveyed the property and moved the boundary lines? You don't have to accept this. Surveys may change according to the point location they are registered from. For instance, we had a survey conducted where the surveyor used a found point near the NW corner of the section (Oklahoma still uses Section-Township-Range locations) which showed that our property lines were off. But we researched the original platting and discovered it was established using a different found point near the NW corner of the section (2nd surveyor couldn't find this point so he established a new point, not uncommon). I would get my own survey to support my existing lot lines if possible and take my well back! Or in the alternative, I would simply not surrender the lot lines and make the neighbor sue for it, giving me the opportunity to bring my survey to court and finalize the matter with a judgment.

 

[STEPHAN]

Or in the alternative, I would simply not surrender the lot lines and make the neighbor sue for it, giving me the opportunity to bring my survey to court and finalize the matter with a judgment.

That is not going to work if he wants to sell right now.

 

[154NH773]

I agree that a review of the survey might show a discrepancy. I've had the same survey company (different crews) mis-locate a point by 2 feet. They attributed it to loading the wrong number into their transit.

 

[OK-LL]

That is not going to work if he wants to sell right now.

I don't see a problem with selling his property right now. He has a neighbor who verbally claims the lines are wrong, but until that neighbor takes court action to settle his claim, there's no real dispute regarding the original platted or unplatted boundaries. With no court action pending, seller is free to sell without restriction.