Damage to Utilities on Easement

[easement2006]

What is the name of your state? Virginia

I have a well documented sewage easement (along with two other neighbors) across a forth neighbor's property, which is listed on all of our plats. My HOA documents further state that "no structure, planting or material shall be placed or permitted to remain upon any Lot which may damage or interfere with any easement for the installation or maintenance of utilities." Unfortunately, both my sewage line (along with one other neighbor's sewage line) were found to be damaged on this forth neighbor's property due to direct downward force on our cleanouts. The damage was detected approximately 6 months after a brick patio was built in forth neighbor's yard on top of our easement, burying our cleanouts entirely. My questions ... (1) do I have any legal recourse for recouping the costs of the damages, since we know it was not natural, but cannot, without a doubt, prove who caused the damage, and (2) can I restrict this owner from replacing the patio, even though it's technically on his property, but over our easement? They are freemasonry and removable, not in concrete.

 

[FarmerJ]

Who determined where the damage was and the cost to repair it. Ill bet that if you can manage to get pics with out tresspass and take all your docs inc repair cost and written evaluation of the cause to a real estate atty they could atleast help you determine what your options could be and even prepare for you the summons with complaint so that the wording is done well if the amount is small enough to use small claims court.

 

[easement2006]

It's a long story, but basically, when the sewer line was damaged, sewage began to backflow into my house (hit the laundry room, kitchen, and living room). So, I had thousands of dollars worth of property damage in the house (which insurance covered partially) plus the thousands to repair the sewer line itself. All repairs have already been accomplished. The plumber could see from the way the pipes were damaged that it was from direct downward force on the cleanout, which they put in writing, but they would not state that it was the actual patio construction that did the damage. Both my neighbor and I were willing to just repair the damages and move on, but the real issue that's causing us to re-evaluate is this patio. When this first came up, the owner took pictures of the patio and informed us that we were responsible for removing the patio and replacing the patio to its exact condition because it was akin to dirt or grass, which we would have to replace. It took us 6 months, and a lot of visits to our HOA, to have him remove the patio under the stipulation that you can't put material on the easement which interferes with the utilities maintenance. Now, the patio owner wants to reconstruct the patio, over our easement (exposing the cleanouts this time), and he is refusing to take any liability or responsibility for any future damage this patio installation causes. I'm not keen on going through this <insert sewage pun here> again, so now I'm wondering what rights I really have to limit him putting a patio down over our easement, given our Declaration verbiage and the previous allegations of damage it's caused. Honestly, even though this owner has been a terror every step of the way, I'm not trying to keep him from him patio (which was nice), I'm just trying to establish rules for the future ... who has responsibility and accountabililty for what. Also, our HOA now has a policy that he has to have the easement owner's permission to relay the patio (to keep the HOA out of it next time, since they approved the original patio without knowledge of the easement), but I suspect he's going to try to appeal that. In the 6 months that it took him to remove the patio so that we could begin work, I spent thousands on having the sewer line snaked every few weeks, as it routinely clogged at the damage point. It's really been a horrible nightmare that I'm just trying to not let happen again. I would suspect that the fact that I've just had the line replaced would mean that any future damage would be non-disputable and his responsibility? I worry that his patio construction will nullify my warranty with the plumber, though, should anything happen.

 

[justalayman]

My HOA documents further state that "no structure, planting or material shall be placed or permitted to remain upon any Lot which may damage or interfere with any easement for the installation or maintenance of utilities." .

Well, it's pretty obvious that the patio interfered with the installation and maintainance of the sewer line, especially since it took him 6 months to move it.


6 months!!! eegads man, tell this guy that he does not have the right to ignore the rules.

He purchased the property knowingly concerning the easement. He accepted it at that point that he was not allowed to build on the easement and the situation and reasons have not changed. It may be "his property" but He knew of the easement and its restrictions. Too bad for him.

You are a lot nicer to him than I would have been. He would have had about a 5 minute notice that the backhoe was on its' way to dig up the sewer line.



As far as the losses; I would think you have a pretty good shot at winning at least some of them.(not sure how a judge would look at your hesitance and waiting the 6 months and the resultant temporary repairs)

Was there any excavating done to install the patio? If so and there was a contractor, he should be included in any suit as well.

 

[easement2006]

Well, to complicate things even further, this owner did not actually build the patio. The previous owner hired a contractor, who is currently in trouble for several other botched projects in the area, to install the brick patio right before they put it on the market. So, it all happened pretty quickly ... patio installation one week, on the market next week, sold with new neighbor very shortly after. New neighbor did get hit with this as soon as he moved in, so I understand why he was a terror. He immediately went to the HOA, who wrote him a letter stating that WE had to pay for the removal and replacement of the patio. So, armed with that letter, he took a hard stand of "I'll let you come in and do your repairs, but your 100% liable for the patio and I've taken pictures." It took us that long to just get the HOA to understand their mistake.

So, because of all of the confusion and ownership transfers and the fact that this contractor is certainly to go belly up any second, I'm less interested in past damages and more interested in what to do in the future. Can I legally (outside of any HOA regulations) prohibit him from reinstalling the patio? If not and there are any damages in the future, can I immediately turn to him for damage costs? Who's really liable? I've been reading a bit on this website, and I'm seeing mostly cases where the utilities break and cause damage to another's property ... but, what are this 4th neighbors responsibilities to insure the health of my utilities on the easement? Is he liable for damages, regardless of knowing the cause, if they're proven to be "unnatural." He is taking another hard stand that he has absolutely no responsibility for the line or any damages that occur in his yard, and the end of his dealings with us is to reinstall the patio with cleanout's exposed.

So, what to do? I can veto his patio installation, and wait for the vindictive next round of damages to that cleanout, or I can let the patio be installed, and wait for the clumsy next round of damages because either way, this neighbor thinks he has absolutely no liability. What is his responsibility for damages?

 

[Proejo]

First thing is that you have not proven that damage was caused by any specific contractor, either before or after the patio was installed. Laying paving bricks onto a leveled, screeded area would not in and of itself cause any damage to these lines. The damage was most likely caused during some other phase of construction and may have been damaged by the original contractor or some other sub contractor during original construction, so I don't see any way for you to prove anything at this point. If he intends to keep the pavers and maintain clear access to the clean outs, he is following the stipulations in the covenants. You can learn a lot more on restrictive covenents and the rights and responsibilities of the HOA and PO's by visiting www.associationtimes.com.

 

[easement2006]

It is suspected that the contractor used a tamper (to pack and level the soil) directly on our cleanout, which caused it to crack and buckle at the joint below, as well as slightly belly at just that location. This contractor also cut our cleanout (without our permission or knowledge) and capped mine in concrete. But, you are absolutely right in that it was way to difficult to prove without a doubt. Since both of our lines have worked fine since '99, and then both of our lines were discovered to be damaged shortly after the patio installation, it is just very suspicious coincidence. Which is why I'm more interested in his liability moving forward. Since we have new pipes, inspected by the county, one would suspect any future damage in that area would be the patio owner's responsibility ... right?

 

[Proejo]

Not necessarily. It would be presumptive to make that assumption. Here in Texas the ground is famous for shifting and causing damage to water and sewer pipes, underground utilities and to the foundation of homes. You'll probably never see this issue occur again, but even if you do, if the ground above it is undisturbed and the only thing on top of the ground is paver bricks, it's going to be darned difficult to prove responsibility lays with this homeowner. You didn't mention how deep down the line is buried. Typically, in moist, soft soil conditions you'd still just about have to run a large tractor or backhoe over the line to cause any damage like you've mentioned. In normal, compacted soil it's almost impossible to cause damage if the line is buried properly UNLESS something like a tractor or backhoe runs across the top of the cleanout and presses the line downward.

 

[easement2006]

Even if the patio installation did not cause the damage, we do know that it was not natural settling or ground shifting (we're in solid Virginia clay here). Do I need to prove anything other than the damage is unnatural and occuring on his property? Isn't he responsible at all in maintaining a damage free environment over the easement?

 

[lwpat]

The placing of the patio is a burden on the easement since you have to have access for maintenance. I am very surprised that your insurance company did not go after him. Have an attorney notify him that he is not allowed to palce anything on the easement that blocks access or could damage the lines. I would suggest replacing the cleanouts with GIP and a bronze cover encased in concrete.

 

[easement2006]

Thanks for your suggestions! To my surprise, the insurance company didn't cover anything outside of the house.

 

[justalayman]

Thanks for your suggestions! To my surprise, the insurance company didn't cover anything outside of the house.

I think what iwpat was refferring to is the insurance company going after the other guy to recoup the payments made to you caused by the blockage.

In addition to your HOA docs. what does your deed and the other fella's deed say in regards to the easement? If the HOA will not back up their own rules, if the deed is clear, you don;t have to concern the HOA. It then becomes a matter between dominant and servient tenents of an easement.

 

[easement2006]

I might be confused, but when I went to find the "title" at the courthouse, I found our "Declaration" document. They may be one and the same. The only verbiage states, "no structure, planting or material shall be placed or permitted to remain upon any Lot which may damage or interfere with any easement for the installation or maintenance of utilities." That's about the extent of it. It also contained a diagram of the my block which diagrams the easement boundaries and says "For the use and enjoyment of properties x, y, and z"

 

[Proejo]

Like I said before, pavers alone won't cause damage and if they're installed leaving access to the clean out then both he and you should be fine. There's no reason for you to fight his placing pavers there. They are temporary and can be removed quickly if the area needed to be dug up, but it sounds like he's leaving the clean out exposed so it won't be an issue. In my opinion, though, if that area needed to be dug up he should be totally responsible for any repair and replacement of his patio, not you or your other neighbors.

 

[justalayman]

Like I said before, pavers alone won't cause damage and if they're installed leaving access to the clean out then both he and you should be fine. There's no reason for you to fight his placing pavers there. They are temporary and can be removed quickly if the area needed to be dug up, but it sounds like he's leaving the clean out exposed so it won't be an issue. In my opinion, though, if that area needed to be dug up he should be totally responsible for any repair and replacement of his patio, not you or your other neighbors.

I don't think 6 months is "quickly" and that is what it took the last time. Also, even if the cleanout is accessible, there may be need to have a truck near the cleanout, which would negate the presumed benefit of leaving access to the clean out. (at least I am sure the neighbor would want to dissallow a truck on the patio)

Bottom line is the OP's rights are to have nothing that is specifically restricted by his deed which states

"no structure, planting or material shall be placed or permitted to remain upon any Lot which may damage or interfere with any easement for the installation or maintenance of utilities."

The blocks, regardless of how easily they can be removed, are "material" that interferes with the installation and maintenance of the utility. The serviant tenant has already proven himself to desire control of the easement and willingly restricted and is still attempting to restrict access to the easement.

Keep the blocks off the easement or the next time, he may end up requiring you to seek legal assistance to get them removed. Obviously, the neighbor wants to make you respoonsible for any damage he may do. Best to prevent it before it happens.