Septic System Easement

[BlazingBRanch]

OK...this is complicated, but I'll try to be as concise and dexcriptive as possible.

My husband's parents, together with my husband and I, bought a farm from my husband's grandparents. We have lived on the farm for 18 years, in the old farm house, and later built a new house here. My in-laws built a new house as well. My in-laws have since divorced, and in the divorce my mother-in-law got the new house along with 3.86 acres that were deeded off (that their house sits on). My father-in-law still co-owns the farm with my husband and I. Soooo, long story short, my husband, myself, and my father-in-law own the farm. My mother-in-law only owns 3.86 acres along with her house, all of it under fence.
When my in-laws built their house, their septic tank and the field drain layed outside the 3.86 acres. That wasn't a big deal at the time because my in-laws owned the 3.86 acres and along with us, co-owned the farm property that the septic tank and field drain was on.
In the divorce dissolution, my mother-in-law received the house. Now she has put the house up for sale. We don't just want any Joe Blow to have his septic system on our property, so we have asked her to move the septic system. She is claiming that with getting the house in the divorce that she also got rights to maintain the septic system. We say, that was fine for you, but who knows what kind of neighbors we will get when you sell and we don't want their septic tank draining onto our property. She claims that she has a case against my father-in-law for neglecting to fix the septic system before she took over ownership in the divorce. We say it doesn't matter....it still needs off of us before you sell it.
We got a letter from her attorney today stating that they want us to grant an easement for her. That easement will carry over to any other future owner and my husband and I, along with my father-in-law, refuse to grant that easement.
My question is: Does she have to move the septic system? Does she have any rights to come onto our property? She knew when they built the house that the septic system was on the farm property, so she can't claim that she had no prior knowledge of the encroachment. Has the right to the septic tank and field drain been inferred? She is planning to take us to court to force us into signing an easement. She is only trying to get out of spending $10,000 to fix the problem.

We have received word from the surveyor that she has no rights and would have to move it. Also another land surveyor has told us that all we would have to do is call DNR and report that her sewage is draining onto our land and then the DNR would make her fix it or she would face fines. I'm expecting this to get uglier than it already is as this woman is mentally unstable and gets along with no one. She is a narcissistic bully, and always expects to get her way. This time we say....No way is she pushing us around!

Would greatly appreciate any suggestions or advice.

 

[army judge]

OK...this is complicated, but I'll try to be as concise and dexcriptive as possible.

My husband's parents, together with my husband and I, bought a farm from my husband's grandparents. We have lived on the farm for 18 years, in the old farm house, and later built a new house here. My in-laws built a new house as well. My in-laws have since divorced, and in the divorce my mother-in-law got the new house along with 3.86 acres that were deeded off (that their house sits on). My father-in-law still co-owns the farm with my husband and I. Soooo, long story short, my husband, myself, and my father-in-law own the farm. My mother-in-law only owns 3.86 acres along with her house, all of it under fence.
When my in-laws built their house, their septic tank and the field drain layed outside the 3.86 acres. That wasn't a big deal at the time because my in-laws owned the 3.86 acres and along with us, co-owned the farm property that the septic tank and field drain was on.
In the divorce dissolution, my mother-in-law received the house. Now she has put the house up for sale. We don't just want any Joe Blow to have his septic system on our property, so we have asked her to move the septic system. She is claiming that with getting the house in the divorce that she also got rights to maintain the septic system. We say, that was fine for you, but who knows what kind of neighbors we will get when you sell and we don't want their septic tank draining onto our property. She claims that she has a case against my father-in-law for neglecting to fix the septic system before she took over ownership in the divorce. We say it doesn't matter....it still needs off of us before you sell it.
We got a letter from her attorney today stating that they want us to grant an easement for her. That easement will carry over to any other future owner and my husband and I, along with my father-in-law, refuse to grant that easement.
My question is: Does she have to move the septic system? Does she have any rights to come onto our property? She knew when they built the house that the septic system was on the farm property, so she can't claim that she had no prior knowledge of the encroachment. Has the right to the septic tank and field drain been inferred? She is planning to take us to court to force us into signing an easement. She is only trying to get out of spending $10,000 to fix the problem.

We have received word from the surveyor that she has no rights and would have to move it. Also another land surveyor has told us that all we would have to do is call DNR and report that her sewage is draining onto our land and then the DNR would make her fix it or she would face fines. I'm expecting this to get uglier than it already is as this woman is mentally unstable and gets along with no one. She is a narcissistic bully, and always expects to get her way. This time we say....No way is she pushing us around!

Would greatly appreciate any suggestions or advice.

You should speak with your own attorney.

She has an attorney, you need one.

You also have a BIG problem.

Ask your attorney about "adverse possession".

I'll give you a brief explanation.

If you as a property owner do nothing about a squatter (in this case your mother-in-law & father-in-law) adversely possessing your property for 10 years in your state (longer in other states); you lose the right to cure the adverse possession/use of your property.

It appears this condition has existed for 18 years.

You've allowed the septic tank to sit on (in this case UNDER) YOUR property for the entire 18 years.

In your state, Missouri, the law says that after 10 years, the defect can't be cured (in some cases the deed passes or the easement), and is cured legally.

I could go on and on, but in essence, you now have no legal basis to deny her an easement.

This easement is transferable to whomever she sells her property.

You've lived with it this long, and you'll have to live with it and allow the same right to the new owner, too!

Her attorney knows this.

You should speak to your attorney, just to confirm this.

You have permitted this condition to exist, and now the law won't penalize the wrong-doer because of your failure to act.

The law has constructively created a property right, an easement for the septic system.

For future reference, anytime you fail to act (as regards your property rights), the law will act negatively towards you for NOT asserting the rights before the SOL tolled.

Next time (let's hope there never is a next time) act immediately and do not allow adverse possession of your property rights.

Missouri Revised Statutes
Chapter 516
Statutes of Limitation
Section 516.010
August 28, 2009
Actions for recovery of lands commenced, when.
​

516.010. No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.

(RSMo 1939 § 1002)

Prior revisions: 1929 § 850; 1919 § 1305; 1909 § 1879

The idea that one can simply acquire property by sitting on it seems very strange in a free society based upon a conception of property rights. One line of reasoning, advanced by Oliver Wendell Holmes suggests that the purpose of the doctrine is to protect the expectations of those who have used property for a long time. Richard Posner (founder of the law and economics school of thought), reasons that the purpose of adverse possession is to preserve the status quo. Posner argues that the adverse possessor has become attached to the property and losing it would be a serious loss, whereas the title holder would view the acquisition as a sudden, unexpected increase in his wealth. Therefore, Posner argues it is better (economically speaking) to allow the adverse possessor to keep the property. A somewhat related idea is that the doctrine rewards the productive use of land, while penalizing the unproductive owner who sleeps on his rights.

The other line of thought argues that adverse possession really functions to protect property rights. The doctrine protects ownership by barring stale claims and errors in the title records. The idea is that as time passes it becomes more difficult and ultimately not worthwhile to seek out every remote claim to the disputed property. The doctrine is sort of designed to flush the system of errors. As seminal law review article states the idea is not to "reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing." Henry Ballantine, "Title by Adverse Possession," 32 Harv. L. Rev. 135 (1918). Although the doctrine is not designed to protect wrong doers or "diligent trespassers" it does so because it is necessary to protect valid titles from various errors and the passage of time.

http://www.lawyerviews.com/lawsite/basicinfo/ap.html

Traditional common law provided a method for someone to obtain title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see. For example, your neighbor built a fence on your land with the intention of taking the property, paid property taxes, and you knew about it but did nothing. If this continued for a period of time set by state law, your neighbor may be able to claim this property as his/her own. The theory is that, by not disputing your neighbor's use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. There are several elements needed for adverse possession to result in title:

The length of time required for adverse possession in title varies - it could be as short as a few years or could run for twenty years or more. Typically public entities must establish a longer period of possession than individuals. Some states have adopted a rule which requires the adverse possessor to pay taxes each year on the land.

The possession must be open for all to see.

The possession must be exclusive to him or her (e.g., the fence in the above example, a driveway, road, etc.)

The possession must be hostile to the actual owner of the land.

To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights.

An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor from getting title to your land through adverse possession.

If you own land, it is important that you do not "sleep on your rights" since you could lose ownership of the land.

http://real-estate-law.freeadvice.com/real-estate-law/adverse_possession.htm

 

[BlazingBRanch]

Septic Easement

Thank you for your advice. However, it appears that I was not as clear as I should have been. We have been here on the farm for 18 years. My in-laws have only lived here for 8 years. The septic system was not a problem or on anyone else's property as long as my father-in-law still owned the house, as the in-laws also joint-owned the farm property that the septic system was on. My in-laws built in 2001. The house and 3.86 acres were deeded off to my mother-in-law in the divorce in 2006. Hence, the septic system has only been encroaching on our property for 4 years as that is when my mother-in-law was removed from any ownership of the farm property. She only owns the house and 3.86 acres. The rest of the land is owned by myself, my husband, and my father-in-law.
We do have an attorney, and he has been advised of the ensuing problems. He has stated that she has no rights to an easement unless granted by all three of us.
Now that I have been clearer on this matter.....any further thoughts?? Would appreciate greatly! Again, thank you for your help.

 

[army judge]

If the home she owns was built in 2001, then 10 years is fast approaching.

Her sole ownership is not relevant.

The condition was allowed to exist during her entire tenancy.

Adverse possession began in 2001.

However, it hasn't been 10 years, yet.

Your attorney seems to be protecting your property rights now.

You don't have to give her an easement.

A court can order her to move the tank and fix the septic system.

That is what the court might do, as she pursues her suit.

You can't make her do anything, however.

You can take her to court and request a judge to order her to move the septic tank.

A state regulatory agency can order her to repair and move the septic tank.

It looks as if DNR will as soon as they assess the situation.

The law appears to be on your side.

Let your lawyer direct your actions.

That is why you've retained him/her.


Sent from my iPhone using Tapatalk

 

[BlazingBRanch]

ArmyJudge, it appears that you have the same assessment of the situation as we do, as well as our attorney. I thank you for your quick reply and relevant information. As much as she is a thorn in my side, I am glad that she has chosen now to bring this matter up. We may well have let sleeping dogs lie too long had she not made an issue of it.

 

[army judge]

ArmyJudge, it appears that you have the same assessment of the situation as we do, as well as our attorney. I thank you for your quick reply and relevant information. As much as she is a thorn in my side, I am glad that she has chosen now to bring this matter up. We may well have let sleeping dogs lie too long had she not made an issue of it.

Excellent.
What I find interesting (and revealing), is the fact that HER lawyer is requesting an easement.
If SHE had the right to the easement, her lawyer simply whip out the EASEMENT card before the judge.
This time, however, she outsmarted herself.

She could have sold the property and alleged that an easement existed.
However, when the new buyer asserted his/her right to it, you'd have resisted.
The buyer would have come against HER for financial redress.

You've outsmarted the "old cow" this time.
Enjoy the "shocked look" on her face when she learns that none of you are as stupid as she believed.