Sewer line Easement?

[DFDolan]

Two homes to my south were sold to developers, raized, and new homes are now under construction. Just prior to demolition, we were all notified by the Village that the three homes shared a common sewer line that was constructed in 1909. The sewer line originates at my house, and travels south across the back yards (12 ft underground) of both developers' lots before connecting into the Village sewer main. Calling my back through prior owners of all three properties I have not found anyone who was aware of this situation.

One of the two homes being built has been going up without interfering with the sewer line and the developer there seems willing to just leave it as it is. The second home, however, destroyed about 40' of the line when their foundation was excavated. The line used to run right through where the basement of his home (under construction) now exists. To provide me continued service, he has installed (at his expense) a temporary line which re-routes the sewer line around his construction project. Now it is "in the open" he is threatening to sue me if I do not agree in writing that within the next few months I will abandon the line and reconnect my home directly to a new sewer main.

The cost of a new sewer connection is $7,500 - 15,000. I am looking for any legal argument that would give me some negotiating leverage to either force the developer to route the existing line around his project (estimated $3,000 cost), or to share the costs of my new connection.

I am told that Prescriptive Easement does not apply since the use was not "open and notorious". However, there must be something that keeps him from tearing out something that has worked fine for 91 years and foist the cost upon me.

Any thoughts or suggestions?

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by DFDolan:
Two homes to my south were sold to developers, raized, and new homes are now under construction. Just prior to demolition, we were all notified by the Village that the three homes shared a common sewer line that was constructed in 1909. The sewer line originates at my house, and travels south across the back yards (12 ft underground) of both developers' lots before connecting into the Village sewer main. Calling my back through prior owners of all three properties I have not found anyone who was aware of this situation.

One of the two homes being built has been going up without interfering with the sewer line and the developer there seems willing to just leave it as it is. The second home, however, destroyed about 40' of the line when their foundation was excavated. The line used to run right through where the basement of his home (under construction) now exists. To provide me continued service, he has installed (at his expense) a temporary line which re-routes the sewer line around his construction project. Now it is "in the open" he is threatening to sue me if I do not agree in writing that within the next few months I will abandon the line and reconnect my home directly to a new sewer main.

The cost of a new sewer connection is $7,500 - 15,000. I am looking for any legal argument that would give me some negotiating leverage to either force the developer to route the existing line around his project (estimated $3,000 cost), or to share the costs of my new connection.

I am told that Prescriptive Easement does not apply since the use was not "open and notorious". However, there must be something that keeps him from tearing out something that has worked fine for 91 years and foist the cost upon me.

Any thoughts or suggestions?<HR></BLOCKQUOTE>

It seems that this developer is giving you a bunch of crap. As long as there were valid permits at the time your home was constructed whereby the Building Dept. and the landowners approved, you have use of the easement. There should be a recorded easement in favor of yourself but if not, there was and is a utility easement established by the fact that the line has been there and in use for 90 years.
The other issue is that the original sewer line was damaged by the developer, therefore the developer is responsible to repair it. Only in the event that the sewer line is in private property and you have no legal easement would you be in the wrong. And thus required to pay for the reroute of a new lateral line. If a reroute is in order does the sewer line have to go through private property anyway before it connects with the Village line? What State or Country are you in and why is the area called a village rather than a city or county?

 

[DFDolan]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
It seems that this developer is giving you a bunch of crap. As long as there were valid permits at the time your home was constructed whereby the Building Dept. and the landowners approved, you have use of the easement. There should be a recorded easement in favor of yourself but if not, there was and is a utility easement established by the fact that the line has been there and in use for 90 years.
The other issue is that the original sewer line was damaged by the developer, therefore the developer is responsible to repair it. Only in the event that the sewer line is in private property and you have no legal easement would you be in the wrong. And thus required to pay for the reroute of a new lateral line. If a reroute is in order does the sewer line have to go through private property anyway before it connects with the Village line? What State or Country are you in and why is the area called a village rather than a city or county? <HR></BLOCKQUOTE>


Thank you so much for your response. Here are some more facts. There is no easement of record. Currently, the only way my home can connect to a sewer is by crossing private property, but this will change in 9/00 when the Village installs a new sewer main on our street. It is at this time that the developer is trying to pressure me to commit to reconnect my home, at my expense.

The developer's position is as you suggested, there is no easement, the line is illegally on his property. Furthermore, despite that it has been there 91 years, it is now a disclosure item that he feels will impact the value of his $2.2M spec home. He is therefore unwilling to allow me to even take the path of least cost and pay the ~$3,000 to re-route the line aroune his foundation.

I live in the Incorporated Village of Winnetka, in Cook County, in Illinois.

You mentioned a new concept for me: Utility Easement. Might this apply?

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by DFDolan:

Thank you so much for your response. Here are some more facts. There is no easement of record. Currently, the only way my home can connect to a sewer is by crossing private property, but this will change in 9/00 when the Village installs a new sewer main on our street. It is at this time that the developer is trying to pressure me to commit to reconnect my home, at my expense.

The developer's position is as you suggested, there is no easement, the line is illegally on his property. Furthermore, despite that it has been there 91 years, it is now a disclosure item that he feels will impact the value of his $2.2M spec home. He is therefore unwilling to allow me to even take the path of least cost and pay the ~$3,000 to re-route the line aroune his foundation.

I live in the Incorporated Village of Winnetka, in Cook County, in Illinois.

You mentioned a new concept for me: Utility Easement. Might this apply?<HR></BLOCKQUOTE>

Even if the developer did not damage the sewer line, you would still need to tap into the new main on your street. Therefore in all fairness, this cost should be borne by you and not him.

As far as the easement issue is concerned, you should take the standpoint that you in fact have a prescriptive easement and there may be a public easement as well. Easements do not have to be recorded to be enforceable but it is better if they are recorded as public notice. There are 2 other types of easements known as 1) easement in gross and 2) easement appurtenant. The gross easement is commonly used as a public utility easement. The appurtenant easement is used for driveways, roads etc. State laws vary so check with a local attorney.

You could make life difficult for this developer by making an easement claim which would cloud the title to the property and scare buyers due to the ongoing litigation. So negotiate with the developer by having him maintain/reroute your temporary sewer line at his cost until such time as you connect to the new main on your street. I would think that a local attorney could use the 91 year period and your particular circumstances to come up with some sort of an easement claim to throw at the developer to initiate settlement.

 

[DFDolan]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:
Even if the developer did not damage the sewer line, you would still need to tap into the new main on your street. Therefore in all fairness, this cost should be borne by you and not him.

As far as the easement issue is concerned, you should take the standpoint that you in fact have a prescriptive easement and there may be a public easement as well. Easements do not have to be recorded to be enforceable but it is better if they are recorded as public notice. There are 2 other types of easements known as 1) easement in gross and 2) easement appurtenant. The gross easement is commonly used as a public utility easement. The appurtenant easement is used for driveways, roads etc. State laws vary so check with a local attorney.

You could make life difficult for this developer by making an easement claim which would cloud the title to the property and scare buyers due to the ongoing litigation. So negotiate with the developer by having him maintain/reroute your temporary sewer line at his cost until such time as you connect to the new main on your street. I would think that a local attorney could use the 91 year period and your particular circumstances to come up with some sort of an easement claim to throw at the developer to initiate settlement.


<HR></BLOCKQUOTE>

Two last questions. You said even if the developer had not damaged my line I would still need to connect to the new main. Why? If my old line had not been damaged (or even found) it may have continued to operate fine for another 91 years without incident. The Village is running the new sewer main for the new homes being built by the 2 developers to connect into. I will also be able to connect into it, but the only one requiring that I do so is the developer.

You are probably right that I should pay to reconnect my home, but it just sticks in my craw that I am sitting here quietly enjoying my home, two developers flatten the homes next door and it costs me $7,500 - $15,000.

If you had to cook up an argument that an easement exists, what arguments do you use here?

Thank you again!

 

[HomeGuru]

Normally the local government requires utility hookup at the closest point if available. In your case, previous to the 2 developments, there was no main to hookup to. Now there will be a new main installed on your street that you could connect to, so there would be no reason not to. In many cases if the owner does not hook up to available utilities, and something happens later, the private owner is responsible for all costs even to pay for work that the government must do to connect the private owner. The government wants to lessen the amount of utility lines and easements running through other owners property and possibly having landlocked conditions. I would surmise that if the developer went to the proper governmental agency to force the issue, the agency would go along with the developer and require you to comply. Your compliance would certainly avoid any future easement and/or private property rights issues and you would also have use of a new main. Chalk it up as forward progress and life in the big city.

As far as the easement issue, the argument would be that the proper governmental agency approved the plans and the developer contructed the sewer lines in the approved locations at the time your home was built new. Therefore there was nothing done illegal or nonconforming. It was a grandfathered condition. That being the case and the fact that there was nonrestrictive use of the property where the sewer pipes were for 91 years, an easement was in fact created.

 

[Tracey]

Talk with the planning department, & the assessments department about whether the city would have made you hook up if your old line hadn't been cut, & how much they would have assessed you. That's how much you have to donate towards hooking into the new main. If you wouldn't have had to hook up, or would only have paid $1,000, any expenses beyond that are damages caused by D cutting your sewer line & D has to pay them.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[DFDolan]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HomeGuru:


Normally the local government requires utility hookup at the closest point if available. In your case, previous to the 2 developments, there was no main to hookup to. Now there will be a new main installed on your street that you could connect to, so there would be no reason not to. In many cases if the owner does not hook up to available utilities, and something happens later, the private owner is responsible for all costs even to pay for work that the government must do to connect the private owner. The government wants to lessen the amount of utility lines and easements running through other owners property and possibly having landlocked conditions. I would surmise that if the developer went to the proper governmental agency to force the issue, the agency would go along with the developer and require you to comply. Your compliance would certainly avoid any future easement and/or private property rights issues and you would also have use of a new main. Chalk it up as forward progress and life in the big city.

As far as the easement issue, the argument would be that the proper governmental agency approved the plans and the developer contructed the sewer lines in the approved locations at the time your home was built new. Therefore there was nothing done illegal or nonconforming. It was a grandfathered condition. That being the case and the fact that there was nonrestrictive use of the property where the sewer pipes were for 91 years, an easement was in fact created. <HR></BLOCKQUOTE>

After doing some reading over the weekend I have another concept I am exploring -Perpetual Easement. What I found is a law whereby if a drain or levee (also applied in case of sewers) is constructed for the mutual benefit of the lands it crosses, it shall constitute a perpetual easement. Common situations are where landowners collaborate to construct a drain system, which was the case with my sewer in 1909.

The operative issue is that an easement still will not apply unless "the owner of the servient estate has actual or constructive notice of the sewer". I have a few thoughts to demonstrate "notice" and seek your reaction to the strength of each:
1. Sewer permits on file in the town which I have copies of. Sounds obscure and not obvious, but a public record nontheless.
2. The Developer's home actually used and benefitted from the sewer until it was demolished. Regardless of whether he had actual knowledge, would this constitued "constructive notice"?
3. My conversation with the owner who sold their home to the developer received notice of the situation (possibly prior to sale) and ignored it. This would clearly need to be extracted from them.

Any reactions or thoughts?

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by DFDolan:
After doing some reading over the weekend I have another concept I am exploring -Perpetual Easement. What I found is a law whereby if a drain or levee (also applied in case of sewers) is constructed for the mutual benefit of the lands it crosses, it shall constitute a perpetual easement. Common situations are where landowners collaborate to construct a drain system, which was the case with my sewer in 1909.

The operative issue is that an easement still will not apply unless "the owner of the servient estate has actual or constructive notice of the sewer". I have a few thoughts to demonstrate "notice" and seek your reaction to the strength of each:
1. Sewer permits on file in the town which I have copies of. Sounds obscure and not obvious, but a public record nontheless.
2. The Developer's home actually used and benefitted from the sewer until it was demolished. Regardless of whether he had actual knowledge, would this constitued "constructive notice"?
3. My conversation with the owner who sold their home to the developer received notice of the situation (possibly prior to sale) and ignored it. This would clearly need to be extracted from them.

Any reactions or thoughts?<HR></BLOCKQUOTE>

1. It can be argued that although there may be permits on record, the permits show only that the subject property has a permit for a sewer connection. Unless there were plans available that actually show the sewer lines running through other private property, you will not prevail.

2. How would the develpoer know where the sewer lines were and that the lines were actually running through other property?

3. Same answer as #1 and 2 above.

 

[Tracey]

I respecfully disagree with HomeGuru on this one. Doesn't happen often, I know...

1. The sewer permits gave him notice because he had to pull all earlier permits on the land to find out what sewer system he had installed & whether he'd have to upgrade it. However, I don't know if this "notice" is sufficient if he didn't pull the permits until after he'd purchased the property.

2. I agree that a homeowner has constructive notice of his/her own sewer line. At the very least, HO has a duty to investigate further & see where the line is. It's not like HO can claim he didn't know a sewer line was there somewhere!

3. If you told the prior owner & he didn't tell the buyer, buyer will be able to sue PO for failure to disclose. If you talked to PO & PO said he had told buyer of the sewer line, that is evidence of actual notice & buyer has no defense for cutting your sewer line.

You've done a good job of identifying the potential issues & law. Now you need to hire a real estate attorney to file suit or get an injunction.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.