Undisclosed Easement and Fraudulent Doh Papers Impacting Estate

[BonefeldEstate]

My question involves an easement in the state of: Michigan

Mr. J had several parcels located along a lake. He built a home on Lot B and eventually split lot B into 2 lots and gave/sold the east parcel of his lot to Mrs. B, his daughter. He and his daughter had knowledge that the current septic drained onto the east parcel owned by Mrs. B.; Mrs. B assisted Mr. J with the sale of the home in 2005 to Ms. C for well over $165,000.

Ms. C was verbally advised that the home's septic drain field drained onto Mrs. B.'s property. They had an implied easement via gentleman's handshake; it was never put into print on the deed or the appraisal. Nor had the price reflected such easement issues.

Ms. C became very, very ill in October of 2010, but not before naming me Personal representative and drafting&signing a will, offering Mrs. B first option to purchase the property at fair market value. Mrs. B advised me, as Ms. C’s personal representative, that the drain field was on her east parcel and she advised me of the verbal disclosure with Ms. C upon sale of the property.

Mrs. B and I are very close friends. I do not discount that this had transpired and they were in agreement.

However, Mrs. B obtained the services of her lawyer to respond to the estate's offer to purchase the house at fair market value. The attorney claims that the value of $70 K, which is well over $100 K below the purchase price just 7 years prior, is too high for the property and that the appraisal does not disclose the easement. Therefore, the property should be appraised at less and reflect the easement.

Research at the court house provided two sets of documents: one showing a draft of a proposed drain field where it currently is located and a final Dept of Health record demonstrating that the drain field is solely on Ms. C’s Estate and not on the East Parcel belonging to Mrs. B.

The contractor, who installed the septic, signed and filed final paperwork with the Dept of Health clearly demonstrating that the drain field was solely on the property owned now by Ms. C.

In conversation between the contractor and Mrs. B's attorney, the contractor advised the Attorney that the drain field is on the east parcel since he was the one who installed it. Perk testing does show that the drain field is on the east parcel.

However, my concern is that the septic contractor falsified Dept of Health paperwork, that Mrs. B' wants to pay less for the property due to the easement that was not disclosed in the most recent appraisal, and that a new septic may have to be installed.

I suggested t the Estate attorney that the contractor be held legally liable for falsifying Dept of Health records and filing them when it is clear that he was aware that the septic drain field was on the east parcel and not on the Estate property as he had documented to the Dept of Health. His fraud should be exposed and he should be held accountable for correcting the fraudulent error.

If this would not be pursuable , I suggested that an alternative would to have the expense split between the three entities: Ms. C’s Estate, Mrs. B and the septic contractor.

Either way, moving or correcting the Septic Issue may also result in having to relocate the well.
This issue has delayed the sale of the house. I desire to liquidate the assets, distribute the funds to the charities waiting for their moneys and get on with my own life.

In the mean time I have made improvements on the house and have corrected issues that have occurred since the house has been sitting vacant which will increase the appraised value considerably.

Does anyone have any suggestions of what I do or do not have going for me so that I can find a way for the contractor to rectify his mistake and also hold Mrs. B and Mr. J, the previous owner liable for the lack of written disclosure?

[LandSurveyor]

So as I understand this so far, the house in question and the septic system in question were installed in about the same time frame on what at the time was one undivided parcel. Later, the person who owned the parcel split it into two parcels knowing full well that the septic field was now separated from the house parcel. Is that correct?

Are you Ms. C's executor?

[jk]

The contractor, who installed the septic, signed and filed final paperwork with the Dept of Health clearly demonstrating that the drain field was solely on the property owned now by Ms. C.

How did contractor determine septic field was completely on Mrs. C's lot? (not the location of the field itself but the placement of the field compared to lot lines)

How was a perc test utilized to determine the location? Did the tester presume the field would perc better or worse than the surrounding area? (depending on all facts, it could actually be either) As well, I have seen perc tests vary is just a few feet on virgin soil so I would question a perc test being an accurate locator.


Beyond that, if the lawyer believes it is overvalued, have him provide an appraisal proving it. A person can make any claim they want but unless they can prove it, all it is is a claim.

not sure why the easement would reduce the value anyway. It was a permissive easement so unless the field is failing, there is no reason to have to install a new field. In fact, if there is room on the lot to install a field, I would think it could actually increase the value of the lot due to the fact that when the existing field would fail, there would be area to allow for a new field. Even with drilling a new well, it could still be cheaper than the alternatives available if there was no land available to build a field.