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Easements for Property Encroachments

Discussion in 'Easements & Right of Way Law' started by Reko1985, May 29, 2018.

  1. Reko1985

    Reko1985 Law Topic Starter New Member

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    Good Morning,

    We purchased our house and 6 acres in 2010. All property boundaries were fenced so we elected not to get a survey completed. After 2 years of living on the property I received a notice to cancel a preexisting boundary adjustment that had been started by the previous owner before they were foreclosed (boundary adjustment was not related to my issue). I took the legal description of our property and my 200' tape measure and walked the boundaries to make sure the fence was in the correct locations. To my amazement our west boundary was about 80' short of our legal description.

    Our neighbors bought their property a year or two before we purchased ours in the middle of their contract the county required the seller to upgrade the septic systems and leach fields on both properties. The initial location for our neighbors leach field was denied by the city and the seller located the leach field further from the house which landed about 90% of the leach field on our south west corner (approx 80' by 120' of raised leach field). When I had found that our property boundaries were off I also found a survey pin located on the leach field so the survey was completed after the leach field was constructed in approx 2009. I confirmed with my neighbors they ordered a survey for the purchase of their house.

    The best thing to do to settle the property encroachment would be to move the leach field which would cost well over $10,000 and fence the rightful boundaries. The problem is we love our neighbors and they are probably our best friends. I have considered a couple of options with them...

    1. Performing a land swap and giving them the amount of our land that is taken up by their leach field and them giving us an equal amount of land on our west boundary. This will still cost them approx $4500.00 for surveying and will take 4 months to file with weld county. It also creates a really difficult legal description of the properties and I would have to build several H braces to build a sturdy fence for our livestock.
    2. We could write them an easement that would allow them to leave their leach field in place and if they needed to rebuild in the future they would relocate the leach field to their own property. We would included that our livestock would graze on the leach field and any damages would be assumed by our neighbors not us. This is not a free solution because I assume we would need a lawyer to write the easement and file it with the county recorder so that it makes it to our title. My only problem with this option is resale and the next owner not being entirely excited about the property encroachment.

    My other thought is can we go back against the seller who originally installed the leach field in the wrong location? or the contractor who installed it? My guess is no and this would take a lot of time in court anyway.

    Any advice on our situation would be helpful thank you.
     
  2. Reko1985

    Reko1985 Law Topic Starter New Member

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    In 2015 I put a down payment of roughly 1800.00 for a pole building package that I intended to build for our horses. The payment were in increments for the phasing of construction, lumber, trusses, metal, etc. I did not sign a contract with the company and provided my payment through paypal for the down payment. In the meantime we got pregnant with our daughter so more pressing financial decisions had to be made and we opted out of building the barn.

    I contacted the company and they told me that they do not process refunds for down payments. To this date I have not received a thing from this company other than an invoice on paypal with no fine print stating this. Throughout the course of the first year we tried to contact the company and explain our case and they said they have no ability to refund and that our money would essentially be good when we decide to purchase a building in the future. Unfortunately I have no future plans to construct a building. The last year and a half I have contacted several lawyer friends, or friends of friends, and have not been able to get a call back or this type of dispute is out of their firms focus.

    My question is do I have a legal right to get my money back and can I get this through small claims court. Is their a simpler way. Any help or recommendations for legal advisors would be great.

    I have included the following as a timeline of events.

    June 2015: I ordered the barn over the phone with supplier. 36 x 36 with wood doors. He informed me payments would be 4 phased. 20% deposit to lock in price, 30% to deliver lumber materials, 20% Trusses, 20% Metal.

    The terms and conditions on the attached invoice show no fine print where it would allude to no deposit refund. My name is also misspelled on the invoice.
    June 30, 2015: Paypal 20% deposit. $1,889.00

    December, 2015: Called the supplier to request deposit refund. He informed me there are no refunds but our money will be in their business whenever we are ready. I told him that we had no intention to build a barn in the near future and we would rather have a refund. He told me it was not possible.

    August 1 , 2016: Sent email to supplier customer service inbox requesting money. Response from supplier....

    "Good Afternoon,

    Thank you for your message. It is the company policy not to give refunds of down payments. However, you may apply the money to any building in the future. Please let us know if you have any other questions or concerns.

    Hope you have a great day!

    Thanks again,"

    August 1, 2016: My Reply

    "Hi ________

    Can you please confirm that I signed a contract with these stipulations and please forward me this agreement for my records."

    To this I received no response.

    December 17, 2016: Email back to supplier

    "____________,


    In August we exchanged a series of emails requesting the down payment I paid for a 36x36 pole barn on 6/30/2015 refunded back to me. The emails are shown below. The charge on my bank statement is shown as follows. (06/30 "company name" 1,889.00). I have also attached the paypal invoices that were sent to me explaining the billing policy and the invoices states nowhere that there are no refunds. I never received a contract for the barn package to sign it was done all through Paypal and by Phone.

    Also I have not received any material for the payment I have made including the plans, lumber, trusses, or steel.

    As stated in the past my family is no longer in need of a pole barn and have no future plans for a barn, and I don't want to hold our money at your company where we receive no interest income.

    I have noticed your company has an A+ rating with the BBB. If we cannot come to an agreement through email or phone my next course of action will be to file a complaint with the BBB.

    If I have the opportunity to sell my interest to another one of your customers please let me know and if you can help facilitate this, but At this time I am requesting the $1,889.00 to be refunded to me by check and sent to...
    XXX

    Sincerely,

    Ben Reko

    To this I didn't even receive a reply.

    After this I allowed this to sit because I started a new job and became preoccupied with becoming efficient in my new job tasks.

    My wife has also tried calling and spoke with the owner. He said he would call her back when he returned to the office and could look at the paperwork. He did not call back and would not respond to her phone calls.

     
  3. mightymoose

    mightymoose Moderator

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    Personally I would pursue option 2 but include language that addresses what happens if the neighbors should sell. This is the least disruptive option and likely keeps things friendly with the neighbors.

    I think you are out of luck going after former owners or the builder. Who knows why the fence wasn't in the correct place, but it is not uncommon.
     
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  4. mightymoose

    mightymoose Moderator

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    You are getting scammed. If they have provided no service they have no reason to hold your money.
    If you can't resolve this on your own then seek help from the court and be as organized and detailed as you can.
    There is a good chance you would get your refund from them before ever appearing in court. It is easier for them to cough up the money than to defend in court.
     
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  5. Reko1985

    Reko1985 Law Topic Starter New Member

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    That is what I figured for the previous owner especially since they have filed bankruptcy under several business names. My concern with the easement is not my neighbor selling is me selling. I wonder if an easement would cause any hesitation to future buyers of my place? I guess this is a question for a real estate agent! We are throwing the idea of relocating and I need to have this buttoned up before we decide to list our house in the future. Thanks for the reply!
     
  6. Reko1985

    Reko1985 Law Topic Starter New Member

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    Thanks Mighty Moose do you suggest getting lawyer. This is a relatively small amount that could be filed in small claims court. Are their lawyers that are specific to small claims court?
     
  7. army judge

    army judge Super Moderator

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    No, any questions you have about any real estate sale, transaction, etc... should be directed to your REAL ESTATE ATTORNEY.

    A real estate salesperson has the same thing on her/his mind as a used car salesperson, EXTRACTING as much of YOUR money from your bank account(s) as can be obtained.

    A salesperson wants one thing, and one thing only, to sell you something for as much money as can be obtained.
     
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  8. mightymoose

    mightymoose Moderator

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    I don't know about Colorado, but I know here in California lawyers are not even allowed in small claims. You can either proceed on your own in small claims or you can hire an attorney to write some scary sounding letters that might persuade the company to refund your cash. You can always add legal expenses to the amount you demand from them.
     
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