Septic was not fully disclosed

[vstelfox2000]

Minnesota

Hello Everyone

I been trying to sell my property 2 years. I received a offer and the buyer finances all came through. 2 weeks before we were going to close, my neighbor came into my driveway and told the potential buyer that part of my septic was on his land. The 7 years I lived there I never had a problem with this man, and he never mentioned it before to me. Also when I bought the property it was never disclosed to me either. And there no easement agreement. For the past 2 weeks I have been trying to work out a deal with my neighbor and offered 5x the amount of land for what I need to cover where my septic system. Today the deal hit to a head when he would not budge over 5 feet, and my buyer walked away saying he doesn't want to deal with a difficult neighbor. The whole deal is off now.

The septic was installed before I bought it in 2004, and my neighbor has know about this septic problem for 10years and has never raised a issue until now.

What can I do? Because as of now my home is unsellable without fixing this problem.

 

[justalayman]

since the neighbor knew of the issue all this time, there is an implied license. That would mean he wouldn't be able to make you move the system but if anything happens to where it needs to be worked on, God bless the guy that tries. Given the neighbors attitude, that just isn't going to happen.

along with that, when it needs to be replaced, he apparently has no intention of allowing the license to continue so if you don't have enough land where you are, you need to be checking into alternates.

but the simple way to fix the problem; install a new system entirely on your property.

your property is not unsaleable. As long as everything is properly disclosed, the location of the system, at the moment actually is not a problem.

 

[vstelfox2000]

since the neighbor knew of the issue all this time, there is an implied license. That would mean he wouldn't be able to make you move the system but if anything happens to where it needs to be worked on, God bless the guy that tries. Given the neighbors attitude, that just isn't going to happen.

along with that, when it needs to be replaced, he apparently has no intention of allowing the license to continue so if you don't have enough land where you are, you need to be checking into alternates.

but the simple way to fix the problem; install a new system entirely on your property.

your property is not unsaleable. As long as everything is properly disclosed, the location of the system, at the moment actually is not a problem.

Even without a easement agreement, I could still potentially sell the property?? What about the fact this wasn't disclosed to me when I bought it? I have a disclosure stamens that clearly states the septic and well are on the property, when they clearly were not??

 

[justalayman]

vstelfox2000;3230586]Even without a easement agreement, I could still potentially sell the property??

yes. it is possible as long as the buyer is informed and accepts the issue and if the buyers lender is provided any statements they require from the neighbor regarding the matter (although given what you have said about the neighbor, that second one might be a problem)

What about the fact this wasn't disclosed to me when I bought it? I have a disclosure stamens that clearly states the septic and well are on the property, when they clearly were not??

I would have to check the applicable statutes of limitations and if there is a tolling of the statutes for the discovery not being possible initially.




and given that, how do you know that it really is on the neighbors property? Do you know, precisely, where it is? Has anybody had a survey so you know where the lot line actually is?



btw (and these are kind of light weight definitions but just trying to separate the two):


easement; a permission to use the land with the rights granted to the land (as opposed to the owner) so they would continue along with each sale of the land


license; a limited permission to use. Rights often granted to a person or to a specific and not permanent use so the rights cease upon a subsequent sale of the land or the cessation of the need to use the land in that manner.

 

[vstelfox2000]

yes. it is possible as long as the buyer is informed and accepts the issue and if the buyers lender is provided any statements they require from the neighbor regarding the matter (although given what you have said about the neighbor, that second one might be a problem)


I would have to check the applicable statutes of limitations and if there is a tolling of the statutes for the discovery not being possible initially.

I was told in MN 7years. I bought the property in 2008. If that true what can I do to the old owners for not disclosing accurate information?




and given that, how do you know that it really is on the neighbors property? Do you know, precisely, where it is? Has anybody had a survey so you know where the lot line actually is?

Yes, I direct spoke to my neighbor and he said he had his land surveyed when he bought his home in 2000. Plus when all this came out this month my realtor paid to have my property surveyed and the neighbor information is accurate.


btw (and these are kind of light weight definitions but just trying to separate the two):


easement; a permission to use the land with the rights granted to the land (as opposed to the owner) so they would continue along with each sale of the land


license; a limited permission to use. Rights often granted to a person or to a specific and not permanent use so the rights cease upon a subsequent sale of the land or the cessation of the need to use the land in that manner.

With this said, since he hasn't made a issue of this in the past 10years, what can or need I do to claim my septic as being license??

 

[justalayman]

With this said, since he hasn't made a issue of this in the past 10years, what can or need I do to claim my septic as being license??

there is nothing you can really do other than ask the neighbor to put such a license in writing. If he refuses, the only thing that you can do is defend any demands he makes regarding moving it.



You didn't answer my questions about the survey and location of the septic. How do you know the neighbor isn't lying about it being on his property?

 

[vstelfox2000]

there is nothing you can really do other than ask the neighbor to put such a license in writing. If he refuses, the only thing that you can do is defend any demands he makes regarding moving it.



You didn't answer my questions about the survey and location of the septic. How do you know the neighbor isn't lying about it being on his property?

Yes, I direct spoke to my neighbor and he said he had his land surveyed when he bought his home in 2000. Plus when all this came out this month my realtor paid to have my property surveyed and the neighbor information is accurate.

 

[vstelfox2000]

I would have to check the applicable statutes of limitations and if there is a tolling of the statutes for the discovery not being possible initially.



I was told in MN 7years. I bought the property in 2008. If that true what can I do to the old owners for not disclosing accurate information?

 

[justalayman]

Yes, I direct spoke to my neighbor and he said he had his land surveyed when he bought his home in 2000. Plus when all this came out this month my realtor paid to have my property surveyed and the neighbor information is accurate.

and they actually located the septic system?





I am not certain but I believe the applicable statute of limitations would be 6 years and a very quick search suggests the time is tolled until discovery of the issue. That would mean you may have recourse against the seller. I would suggest speaking with a local attorney who can review the specifics of the situation and determine if you do have any actual cause of action against the person that sold the property to you.

 

[justalayman]

what you could do if you are able to make a valid claim against the seller would be to seek compensation for the damages you are now subjected to. Damages, as I see them, would be the cost to install a system on your property.

 

[vstelfox2000]

and they actually located the septic system?

I am sorry not following you here, are u saying a survey may not pick up on where the septic is located? Where everyone is saying my septic tank is, is mostly on my neighbor's land.

Also when you say if he gets to a point where he wants it removed, does he just have the right to start digging it up or would he have to serve me with something? I really don't think he wants anything to do with the tank, his angle the whole time was to take as much land away from me for free to build a service road to his farmland, but he got too greedy and my buyer walked away from the deal, I did too.

 

[justalayman]

I am sorry not following you here, are u saying a survey may not pick up on where the septic is located? Where everyone is saying my septic tank is, is mostly on my neighbor's land.

who is everyone and how do they know? If it's been there for at least 10 years (your ownership), memories get foggy pretty quick sometimes.



A surveyor is not going to notate the septic on the survey unless they are specifically hired to include that or they reference some other document (I know mine is located on my original permit although it is not legally dependable as it is rough measurements provided by the installer).

Also when you say if he gets to a point where he wants it removed, does he just have the right to start digging it up or would he have to serve me with something? I really don't think he wants anything to do with the tank, his angle the whole time was to take as much land away from me for free to build a service road to his farmland, but he got too greedy and my buyer walked away from the deal, I did too.

no, what I am saying is he would have no right to dig up anything or demand you do it since he is aware of the encroachment and tacitly approved it by failing to make it an issue previously.

 

[vstelfox2000]

who is everyone and how do they know? If it's been there for at least 10 years (your ownership), memories get foggy pretty quick sometimes.



A surveyor is not going to notate the septic on the survey unless they are specifically hired to include that or they reference some other document (I know mine is located on my original permit although it is not legally dependable as it is rough measurements provided by the installer).


All your information has been very helpful, thank you so much. Everyone is surveyor, my realtor, neighbor, and his attorney. The reason my land was surveyor was to find out if neighbor was telling the truth about the septic being on his property.



no, what I am saying is he would have no right to dig up anything or demand you do it since he is aware of the encroachment and tacitly approved it by failing to make it an issue previously.

Ok I understand but I think with the level of difficulty my neighbor is being, I would be safe with a easement. How do I force the easement issue with him, so I can hope another buyer will buy my house. At this point I am not really feeling like giving him any of my land, bc I already offered him a large amount and he didn't take it. Is there any way I can force the easement option without giving him my land?

 

[vstelfox2000]

A surveyor is not going to notate the septic on the survey unless they are specifically hired to include that or they reference some other document (I know mine is located on my original permit although it is not legally dependable as it is rough measurements provided by the installer).


All your information has been very helpful, thank you so much. Everyone is surveyor, my realtor, neighbor, and his attorney. The reason my land was surveyor was to find out if neighbor was telling the truth about the septic being on his property.

 

[justalayman]

that's the problem; you cannot force an easement on him. You can enforce an implied license because that is what you have but that is limited in it's purpose and duration. There is nothing you can do to demand he acknowledge it though. It would only be an issue if he attempting to demand you remove the encroachment.

Everyone is surveyor, my realtor, neighbor, and his attorney. The reason my land was surveyor was to find out if neighbor was telling the truth about the septic being on his property.

so the surveyor did locate the septic system? If so, of the bunch you listed, that is the ONLY one whose opinion actually means anything, at least as far as the location.



is there enough land to be able to install a septic system on your own land if needed? If so, it may be cheaper to either install one so this is not an issue or at least consider adjusting the sales price of the house (or offer incentives actually) to go towards the cost of a new one for a buyer.