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Legal Question regarding Sewer Line

Discussion in 'Easements & Right of Way Law' started by amovida, Jul 7, 2022.

  1. amovida

    amovida Law Topic Starter New Member

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    I apologize in advance for the long post but I want everyone reading this to have the details. I have a turn of the century triplex in old town that is fully occupied. My sewer line for this property exits out the back of the property, turns and runs for about 70 feet on my property and then runs across the back (and total width) of my neighbor's property before hitting the main located in the street. My neighbor has informed me that he is going to be both expanding the footprint of his home and building a 3 car garage on the back of the property and will be breaking ground in about 5 weeks. The garage portion of his build would partially go over my sewer line whose depth is about 4 feet for the section on his property. He is building the garage as "slab on grade". The owner before him installed a flagstone patio and immediately after we had a backup. I had the line camera-ed at that time and located and the damage was directly under the newly installed patio. Because I could not prove the damage was not there before I wasn't able to do anything. The current owner is making all sorts of statements, "because the line is damaged (I told him what had happened) the City will make me replace it (there is no evidence that they would) and therefore he shouldn't have to." I do not believe any actual easement exists but it is my understanding as the line has been there for a very long time (it is clay so I'm guessing 60 years or more I have either a prescriptive or implied easement). I assume that if this line is not replaced prior to construction the construction will almost surely collapse or damage it and I do not think I am being alarmist or paranoid. If it was damaged from the simple tamping of the dirt and install of a flagstone patio then a grader and concrete pouring will very probably collapse it. The line definitely should be replaced in the portion where the construction is going to take place. I want some opinions on who should pick up the cost on this. From my view he is initiating the action that will threaten the line and therefore should pay for it. If he doesn't replace the line and builds over it and it is damaged by him I am guessing he will need to pay for the repairs and possibly house my tenants for the time it takes to make the repairs. Furthermore if he leaves the line and I need to repair it in the future I would have that right....something I would definitely not want done in my new garage and driveway. I would like to hear some opinions on this and I thank you in advance for your constructive thoughts.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    Wrong. He's not responsible for paying for anything until, and unless, he does damage the line. For all you know his construction might not damage it at all.

    Here's what you do.

    1 - Get that camera guy out to document the current condition of the line.

    2 - Hire a lawyer ASAP. If you want to claim an easement, you'd better get it into court fast and get an injunction to stop the construction while the easement question is being litigated.

    3 - At the same time your lawyer can check county records to see if might already have been an easement granted to your property way back when.
     
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  3. zddoodah

    zddoodah Well-Known Member

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    The long post is fine. The lack of paragraph breaks is less fine. :)

    There are two basic categories of easements: express and implied. When you say that you don't "believe any actual easement exists," you seem to be referring to an express easement (i.e., one that is affirmatively granted by the owner of the servient estate). An implied easement is one that exists by operation of law based on certain facts. A prescriptive easement is one type of implied easement, and it's essentially the same thing as adverse possession, except that it confers an easement (i.e., a right to possess and/or use the land of another) rather than conferring ownership. One of the critical requirements for a prescriptive easement to exist is that it must be "open and notorious." A buried sewer line is pretty much the opposite of "open and notorious."

    I don't know how much time is required under Colorado law to establish a prescriptive easement. For adverse possession, it's 18 years (or less if the alleged adverse possessor has a good-faith claim to title and has been paying the property taxes). You mentioned some sort of issue with the prior owner, but you didn't provide any indication of when that happened. Nor do we know how long the current owner has been there or whether, when the current owner acquired the property from the prior owner, there was any disclosure relating to your sewer line.

    Why does the line need to cross your neighbor's property at all?

    The cost of replacing the existing line? I can't think of any reason why you shouldn't pick up the cost. However, the bigger issue is what happens if the line stays in the same place, your neighbor builds over it, and then something happens where you need access to the line. Moving it now likely won't cost boatloads of money, but accessing a line under someone else's structure likely will.

    If I were you, I'd talk with the neighbor about moving the line to a place where future maintenance and repairs won't be extremely problematic. Even if you have a prescriptive easement, unless your neighbor acknowledges it, a dispute will costs LOTS of money to litigate. Solve the problem now, AND THEN DOCUMENT EVERYTHING (including, if necessary, with a written easement that gets recorded/filed with the county recorder/clerk). Retain the services of a local attorney to make sure this gets done correctly.
     
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  4. adjusterjack

    adjusterjack Super Moderator

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    Can't emphasize that enough.
     
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  5. amovida

    amovida Law Topic Starter New Member

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    @zddoodah Ha! Love the comment regarding the lack of page breaks...noted:)

    I called a title company, got instructions for searching the county records and came up with zero for any recorded surveys or easements. Doesn't mean for sure that they are not there but in the 20 years I have owned the property I have not had one done. Our local county records access online is pretty comprehensive and we have a place to search for a recorded survey or easement and I did not find either.

    As for breaking down the timeline I bought the property 20 years ago. I was aware that the sewer crossed the neighbor's property but that was about it. I was pretty green and probably didnt know an easement from and egret. Roughly 10 years ago the owner of the neighbor's house installed a flagstone patio and our line backed up. I contacted and informed him...he denied responsibility and that was the end of that.

    The current owner took possession about a year ago. He has informed me he was not made aware of the sewer line when he purchased the property. Not sure what his title company found. He told me about his plan to expand the footprint of his home and to erect a 3 car garage with an office (not sure?) above a couple months ago. He knew about my sewer and asked if I could split the cost of a camera and locating service to evaluate the line and to find out where it would lie in relationship to his proposed building to which I agreed. When the sewer company located the line it runs directly on the edge of his proposed 3 car garage/office. I would guess that some part of it would be under this new building and the rest very close to the edge.

    I did hire an attorney in the beginning of this and got his opinion. His opinion contradicted the opinions I am reading here. That is why I chose to post here as each time I read something regarding others facing this problem or talk to the city building or civil engineering department I get a different answer. The real estate attorney who I have used for another easement issue in the past was of the opinion that if the line was to be moved my neighbor would be responsible for the costs. He also mentioned that if my neighbor were to damage my line during construction that responsibility would lie on him and his contractor. While I like this explanation better I really just want to understand the best path forward.

    After my search I am fairly certain there is no "express easement" and reading the requirements for an implied easement I think we have no problem to meet 18 years of use but "open and notorious"? Sure sounds like I would not meet that test, right? But on the other hand my sewer line has probably been there crossing the neighbors land for 80 years or more given when my neighbors house was built. My house is one of the homes that existed originally being built previous to 1911. The courthouse burned down in 1911 and all homes built previous to that year were given 1911 as a build date. The neighbors house was built next to it in 1940. When the then owners of my property sold off a portion of their property to form what is now my neighbors house during that time surely they would had at least a verbal agreement as to the location of the sewer line and an understanding of my property owners rights...assuming that is correct are those rights now gone?
     
  6. welkin

    welkin Active Member

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    You need to understand that without a granted easement you have no property rights to use your neighbor's land (even though there was once a common owner of both properties). You may have a valid claim to a prescriptive or implied easement but only a court can grant them based on the facts.

    The sewer line is there and it is your neighbor that has to deal with it. If I were you I would tell the neighbor the ball is in your court. I would stop worrying it unless and until there is something to worry about. And I wouldn't pay for anything except an attorney if the neighbor were to damage your line.
     
    Last edited: Jul 8, 2022
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  7. zddoodah

    zddoodah Well-Known Member

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    As I noted, the sewer line is anything but "open and notorious," and it doesn't sound like you can prove any knowledge by any owner of the prior property before 10 years ago. Based on what you've told us, it seems to me that any sort of approach that takes you toward litigation would be seriously ill-advised. If I were you, I'd try to find a way to get your line off your neighbor's property altogether. If that doesn't work, I'd try to negotiate to move it somewhere that won't be impacted by the neighbor's intended construction. And, at the end of the day, get everything documented.
     
  8. welkin

    welkin Active Member

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    The open and notorious and the length of time in use does apply to adverse possession and prescriptive easements. But it does not apply to implied easements by prior use or easements by necessity. The Colorado courts recognize the common law doctrine of implied easements.



    Here are the elements that have to be met taken from a 2021 Colorado appeals court decision:
    AMADA FAMILY LTD. PARTNERSHIP v. Pomeroy, 494 P. 3d 633 - Colo: Court of Appeals, 6th Div. 2021 - Google Scholar

    ¶ 46 An easement by prior use is a type of implied easement. To establish an easement by prior use, a party must show that

    1) the servient and dominant estates were once under common ownership, 2) the rights alleged were exercised prior to the severance of the estate, 3) the use was not merely temporary, 4) the continuation of this use was reasonably necessary to the enjoyment of the parcel, and 5) a contrary intention is neither expressed nor implied.

    Lobato, 71 P.3d at 951 (citing Restatement (Third) of Prop.: Servitudes § 1.2(2) (Am. L. Inst. 1998)).

    OP did tell us that he bought his property from someone that created the neighbor's lot some time after the OP house was built. Presumably the seller had sewers and installed the sewer line prior to severance..
     
    Last edited: Jul 9, 2022
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  9. adjusterjack

    adjusterjack Super Moderator

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    "In theory, theory and practice should be the same. In practice, they often aren't."
    Yogi Berra.

    That's one lawyer's opinion. Your neighbor's lawyer might be of the opinion that your fear of damage is speculative and may never happen. Your neighbor is not obligated to pay for the relocation of your sewer line.

    True. Provided you could prove that the damage wasn't just due to wear and tear on a 100 year old sewer line. You may still have to go to court over it, which could take many months and thousands in lawyer fees, while you are also paying for your tenants' temporary lodging, which you might not get back due to failure to mitigate.

    You might be awarded an easement but that wouldn't compel the neighbor to pay for relocating the sewer line, it would just keep him away from it.

    You still risk having the 100 year old sewer line collapse at some future date due to wear and tear. Then you would have to pay for relocating.

    My opinion, for the two cents that it's worth, is that you avoid litigation and reroute your sewer line through your own property, at your own cost, while you have control over the when and the how much. It's likely to cost you considerably less than litigation.
     
  10. OldSurveyor

    OldSurveyor Member

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    I agree with previous posting regarding easement by implication. Seems very possible.

    My opinion is that the liability might eventually rest elsewhere, as suggested..

    The cost of litigation versus the cost of relocation borne by the OP is is also suggested but the actual decision rests with the OP. We have no idea here of the "competing" costs.

    No one here can predict these costs. In any case the OP has had some options suggested.
     
  11. welkin

    welkin Active Member

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    Why don't you speculate as to why the builder of house didn't route the sewer line entirely on what is his property now in the first place. Do you think maybe there was no sewer line in the road that fronted his property (as it turns out that he created the second parcel).

    Aside from the cost to relocate the line on OP's property you might want to add the cost of extending the municipal line to OP's property. That averages from $10,000-$15,000 per parcel. There are also the fees for each lateral connected to the extended sewer. They average $4,000-$5,000 per parcel.

    So when the house was built there was no municipal sewer to hook up to except in the side road.
     
  12. amovida

    amovida Law Topic Starter New Member

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    @welkin Sorry for the delay...busy days. I can only guess as to why the sewers were routed the way that they were back in "the day." The times I have inquired when talking to guys that actually work on sewers around here I have been told it's a byzantine maze and it's amazing that they work at all. My property which was built in 1911-ish was one of the earliest homes. It is a beautiful home with a pillared porch and nice brick and stonework. It would make sense that early bathrooms would have been to the rear (north side) of the property. There is no sewer main in the alley on the north side of my property nor do I believe there is one on the south side (less sure about this). So the sewer line exits my property heading north and then quickly turns west to cross the back of my neighbors property to the only sewer main line that is available as far as I know.....on the side street. I don't think there was any other option at the time.

    Since my neighbors lot was built in 1940 I am guessing the owners of my property sold off part of their land and created a lot...it would take a lot of research to unwind the sequence of events to know for sure. My sewer ended up crossing that lot and was never recorded for an easement and given the clay material of the line has been there a minimum of 50 years.

    @adjusterjack I agree with you. Now is the time to solve this problem. It might be time to realize that regardless of where the legality of this line lies and what outcome I might have in court it is time to get some type of agreement in place to share the cost of relocating the line either out from the footprint of his new build with an easement or even better out to the alley where it would no longer be on my neighbor's property. There will be a question as whether or not the line can be rerouted to the alley (only 6 feet from where it lies now) and then be swung back to tie into the main at the existing tap. Otherwise a new tap would have to be made and this will add quite a bit to the cost.

    I would add that even though my neighbor may not be on the hook for moving my line the likelihood that he will be on the hook if it is damaged is significantly higher. If I were in his position that is a risk I would not take. Similarly when there is an excavator on site it seems a perfect opportunity for him to pay for a new trench and for me to pick up the cost of installing new PVC and fittings. Someone brought up the idea that the city will not allow him to continue with his build without having the sewer easement (if it stay on his property) on his plans...guessing this means he would have to draw up the easement and record it as well...not sure.
     

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