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  1. #1
    Irish67 is offline Junior Member
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    Neighbor's septic drain over property line

    What is the name of your state? PA

    This case involves a property dispute between a friend and his neigbor. The offending neighbor cut downs some trees and did some other things that started off the whole proprety dispute but in a recent letter from the neighbor's lawyer to my friend, they disclosed that there is also a septic drain field that is on the friend's property. They are seeking an easement for this where none was in existance before.

    My question is specific to this requested easement. If, due to other factors involved, my friend is not willing to grant this easement, could the neighbor aquire the land by adverse posession or get a prescriptive easement?

    Based on my understanding of the law, neither should be granted because both require the use of the land to be open. My friend did not know about the septic drain field until just recently and an easement for this use does not appear on his deed.

    Is this correct and what are the possible courses of action to remedy this situation. It may also be relavent that the size of the neighbor's property does not allow for the drain field to be relocated on his own property. There is no public sewer service available so the only alternative would probably be some sort of compact/self-contained treatment system.
  2. #2
    FarmerJ is offline Senior Member
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    The easiest way to go is to find out if in your city/county Mound style septic systems can be built on smaller propertys . If the answer is no then perhaps the person who has the neighbors septic drain field on his land with no easement in place can simply grant one that is worded to say that when the time comes that the current system fails the right to use that space expires. ( of course then they will have to live with having a holding tank installed with a signal light telling them when to have the tank pumped) the easement could also specify that with in one year of city water or city sewer connections being made available the right to use expires. A attorney could draw up a easement listing conditions for use to expire INC other things like should the home become destroyed more than 40% by fire, occupant actions or weather related causes then the lot owner would have to include new well and septic systems in rebuilding plans. ( city/ county officials can declare a property destroyed) a well prepared easement could be drawn up to allow continued use for now but have set rules for expiration. a condition of granting the easement could also require the property benefiting from its use to pay for all legal cost of drawing up the easement and recording it before it takes effect. Other wise if your friend refuses to give a easement then of course the other party could sue for and get a prescriptive easement. BUT why make it any harder, or make legal bills any larger than they have to, A easement worded to address expiration terms could indeed let them both expend there energys on something other than a big fight costing them each a fortune. Services of a real estate atty would be well worth it. Try the links up top to locate a atty!
  3. #3
    Irish67 is offline Junior Member
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    I agree that in the end it may be easier to come up with a mutually acceptable easement for the septic system. However, this is only one out of many other violations committed by this neighbor related to the boundary and I was wondering if the illegal septic system could be used as additional leverage to clear up those matters.

    If he has a good chance at getting a prescriptive easement for the septic system via the courts, then this doesn't provide much leverage. The reason I thought that a prescriptive easement wouldn't apply is because, as with adverse posession, the use has to be "open and notorious." Because the system is underground and not at all visible, it does not meet the "open" criteria.

    I also thought that his other "out" might be to seek an easement by necessity. However, mound type systems (and other alternative compact on-site systems) are allowed in this area so on could argue that he has another alternative so the existing system does not have to be there by necessity.

    At this point in time, we have a survey showing that a recently built structure is over the line and that the trees that he cut were also on my friend's property. I don't know what my friend would settle for, but were I him, I would be satisfied if he moved the structure onto his own property (also meeting setbacks and other zoning requirements), pay a fair price for the lost trees and for the sought after easements in addition to paying for incurred survey and legal fees (my friend does have an attorney and had to have a survey done for this specific purpose). I don't think he would necessarily seek damages beyond these real costs. However, knowing how this guy operates, I doubt that he would pony up for all these items without a court order.

    That being said, what is considered to be a fair price for an easement as a percentage of the fair market price for purchasing the land outright? The land in question is currently being farmed and in addition to an easement for the septic system, he wants an easement to drive on my friend's property to access his rear yard which will render that portion of the land unsuitable for growing crops so my friend's one and only use for the land is excluded by granting such an easement.
  4. #4
    FarmerJ is offline Senior Member
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    Your county property tax desk could tell you how much a acre of residential land is worth for taxation purposes in your county or a realtor could say . With prescriptive easements when the use is hidden like a septic system or utility but had been in place for a long time is likely where he would win. This is why I suggested condtions where the use expires. ( In mpls when I had a 2 unit home I didnt know it was on a shared sewer with next house. What I did learn when that house was to be torn down that my property had what fit as precriptive easement thru the nbrs lot because of that shared sewer line and the city made them take steps to protect the line when that house was torn down, If my line had to be totally replaced It would have had to be redone so the line didnt cross the nieghbors lot) Even if your friend pays for the cost of the easement If the nieghbor refuses to sign it. The nieghbor will have to pony up and pay to start a suit. If your friend wishes he should talk to his atty about forcing the nieghbor to accept easement with expiration terms and move the offending structure. I see it allready has become a whizz war so if its prepared well enough for a court the court may see into it that the nieghbor is not being reasonable and make its decision accordingly. Your friend doesnt need to allow any more uses of his property. It would be interesting to see how the court ruled in this matter after all was said and done.
  5. #5
    Irish67 is offline Junior Member
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    Thank you for your reply. I'm not sure if my friend is open to an easement but it is a good idea to be prepared in the event that the court may require such.

    Do you think the following easement terms would be considered to be reasonable?

    1. Cost of easement = 35% of current market value of land determined by the tax assessors value of the land value per acre (not including improvements) of the grantee's lot times the acerage of the easement.

    2. Grantee to pay for all legal fees associated with obtaining the easement.

    3. The easement is terminated under any of the following occurences , whichever comes first.
    A. The existing system is no longer functional and requires replacement or major repair as determined by the local Sewage Enforcement Officer.

    B. 20 years time commencing from the date at which the easement is granted.

    C. The main residence is destroyed by fire, acts of god or actions by the owner or current resident to the extent that 40 percent or more of the structure needs to be replaced to return it to the condition prior to such incident.

    4. Upon termination/expiration of the easement the grantee gives up all rights to the property without any compensation whatsoever.

    Any suggested modifications or additional terms?
  6. #6
    lcannister is offline Senior Member
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    How many years has the septic system been there?
  7. #7
    Irish67 is offline Junior Member
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    My best guess is it has been there since the house was built so over 40 years. So, in terms of time it would meet the requirement for a prescriptive easement.

    However, at least in PA, another requirement for a prescriptive easement is that the use must be "open and notorious," open meaning visible to anyone. However, no one would know the system is on the neighboring property because it is entirely underground and is not a "mound-type" system that would make one even suspicious that such a system might be there. In fact, I still don't know exactly where it is located and I don't know if anyone even knows the extent of the underground piping in the drain field. This could present a problem in trying to define the extent of the required easement.

    One other condition I thought might be in order is to hold the farmer harmless in the event of accidental damage to the system that might occur during agricultural activities (such as deep plowing) in the vicinity of (but outside) the defined easement. This term might be required because no one really knows how big the drain field really is.
  8. #8
    FarmerJ is offline Senior Member
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    40 years old , well I can tell you this, If theres a metal holding tank give it about 5 to 10 years and due to rust the tank top might cave in, after 40 yrs if they have gotten careless and are not thinking any more when they flush / pour into the drain, that system might be well on its way to failure, like the lines plugging up, personally I dont think that a 20 year time frame will mean much because of the age of the system. My homes septic system was put in back in 63 and like this problem your helping with there is no way to know exactly what kind of tanks or materials were used or the lay out. If you can spot anywhere in the other persons yard vent pipes/ clean outs even if they are just 4 inch cast iron showing only a few inches from top of the grass they might point to the aprox area of the drain field, hell the drain area could have been a old car buried over for all anyone knows. Your number A should include this > Or any new code compliance mandates required by state /county/ city agencys. that would cover changes such as mandated improvements required at the time of sale or before permits are granted like how some countys do when the property owner wants to do something requiring permits, or at the time of sale required improvements. I suspect your trying to help save money with all this, but you know a real estate atty really needs to review everything , If something in the wording is missed and there is a problem later there may never be any peace over it and legal bills could be even worse. One thing that might give a little info is to start talking to any of the older people still in the area to see if any recall what was done to come up with a septic system for that property, thats how I learned about the old car thing, one I met told me about the car thing, they had actually dug a huge hole, took out one window and cut a hole in sheet metal for pipe to go into and buried it. Others told me about rock ditches being created for absorbtion areas, or pipes leading off to natural ditches or creeks or ravines.
    Last edited by FarmerJ; 12-29-2006 at 03:47 PM.
  9. #9
    Irish67 is offline Junior Member
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    Red face

    Thanks for the advice FarmerJ.

    FYI, all of this will go through my freiend's attorney. I would just like to educate him on his options so he can have a more productive consultation with his attorney when it comes time to lay all of this out. If he has time to consider the various options before talking to his attorney they should be able to get it formalized pretty efficiently.

    There is a neighbor who has lived in the area for a long time but I don't think he even knew about the drain field.

    My wife grew up in a trailer in the back woods of Oklahoma so she knows all about creatively designed septic systems. Basically use whatever you have around.
  10. #10
    lcannister is offline Senior Member
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    After 40 years you probably haven't a prayer. Rather your "friend".
  11. #11
    Irish67 is offline Junior Member
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    I realize that the septic system meets the time requirements for a prescriptive easement which is 21 years in this state. However, that is not the only criteria that is applied in granting such an easement.

    As I have said earlier, one of the other requirements is that the use is "open and notorious" which is not met in this case. No one has commented on why a court would opt to grant a prescriptive easement (even considering the long time period) when this requirement has not been met.

    Are you saying that if the time period greatly exceeds the legal requirement for a prescriptive easement that the other factors are either ignored or cancelled out?
  12. #12
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by Irish67 View Post
    As I have said earlier, one of the other requirements is that the use is "open and notorious" which is not met in this case. No one has commented on why a court would opt to grant a prescriptive easement (even considering the long time period) when this requirement has not been met.
    No one WILL comment on what a court will or won't do unless you somehow contact (illegally) the judge who will be sitting in judgement of the case.
  13. #13
    Irish67 is offline Junior Member
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    Others have, in effect, commented on what a court will do by saying that given the time frame involved there would be "no chance" that a prescriptive easement wouldn't be granted.

    I'm not asking for predictions as to what a court might or might not do. Rather I'm asking for opinions about interpretation of the various requirements of the laws governing prescriptive easements. As I see it, there are multiple provisions that must be met but it seems that everyone is focusing on the time factor. I'm left wondering if the other requirements have been somehow ignored frequently in other cases where so much time has transpired.

    How a court would rule in this particular case is surely an unknown. I'm just curious as to whether there is any case law that dealt with a similar situation.
  14. #14
    lcannister is offline Senior Member
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    Tell your "friend" to get an Attorney and stop trying to be one before your advice and interpretations get him in trouble.
  15. #15
    Irish67 is offline Junior Member
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    He does have an attorney. I haven't offered him any advice on this as of yet. I'm just trying to educate myself on the law regarding such matters. Without a better understanding of the law, I won't offer him any advice. Even if I do offer up some alternatives at a later time, I won't be surprised or offended if he takes it all with a grain of salt because I'm not an attorney.

    In the end, it is his business, not mine. I'm just fascinated by this case and I enjoy learning what I can about it. As such, I thank all of you who have offered up some insight into how best to deal with this matter.

    Regards,

    Irish

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