When Must an Easement Be Disclosed

[djokernadal]

Half-way through construction on my new home, I discovered a large drain in the backyard that i believe wasn't there when I entered contract. Builder says it was, I say it wasn't and I have photos that support my case. Regardless, there is clearly a drainage easement on the lot that I was not made aware of prior to contract signing. I did not review a plat but I did inspect the lot. Should I have been told of the easement by the builder/his listing agent before entering into contract? It seems to me that not learning of an easement on a lot until 'closing' is too late. Thank you.

[flyingron]

Well first off we can't give you specific information for your case because you didn't tell us what STATE you are in.

Unless there was a specific statement in the presale disclosures when you bought the lot, an easement is not considered a "defect" in the property that requires disclosure. Sometimes these appear on plats, it other cases you'd need a proper title search to find out their presence. Frankly, my guess is you have no claim as to anything here. The failure is in your own due diligence.

[djokernadal]

Thank you.

However, I think I can still cancel my contract based on the inspection period. Basically, my contract allows for an ‘inspection period’ that does not expire until the day of closing. Specifically, it states that I can do any type of inspection and if I find the property unacceptable I can cancel the contract in writing to the listing agent. Contract goes on to say that the seller can try to rectify the issue/s but if an agreement isn’t made between buyer/seller, buyer can accept ‘as-is’ or can cancel and receive EMD.

[flyingron]

We can't help you if you don't tell us the name of your state.
We can't guess as to whether your finding of the drain would qualify as a valid condition for invoking the inspection contingency without seeing it.
I'd suggest dealing with a lawyer with an issue of this financial magnitude. The lawyer can read the documents and deal with issues like your reticence to answer basic questions every time they are asked.

[djokernadal]

Apologies, sir. AL is the state.

[LandSurveyor]

Should I have been told of the easement by the builder/his listing agent before entering into contract?

Perhaps, but it's "buyer beware" and you cannot pass off the responsibility for due diligence. The contract for sale indicated the parcel which you were purchasing and at that point it's up to you to determine the value of the parcel to yourself. You need to find all of the publicly recorded stuff yourself. It's all available for public review. Or do as most diligent buyers do and have an attorney represent you in any real estate transaction.

I think I can still cancel my contract based on the inspection period.

That may be true but there may be restrictions.