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  1. #1
    Join Date
    Oct 2009
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    5

    Default Adverse Possession Claim Over a Septic Field

    My question involves real estate located in the State of: Michigan

    I'm trying to purchase 10 acres of wooded land behind my house which adjoins to my existing property. Part of the 10 acre parcel is a separate outlot which is two lots north of my existing parcel.

    My neighbor immediately to the north has had a septic leech field located on the outlot since 1971, according to her lawyer. The lawyer has sent me a letter stating that if the current owner of the 10 acres attempts to sell the land, that my neighbor will seek a court order for adverse possession of the outlot since her septic field is located on the outlot and since she has maintained it since 1971.

    Furthermore, she claims that the septic field was put there by the original builder of the house, who happens to be the same gentlemen who is trying to sell me the 10 acres, back in 1971. He denies this claim, but I don't know whether to trust him or not.

    The lawyer's letter has stated that she will either seek adverse possession of the land or will seek a "prescriptive easement" over the land. The lawyer wants the owner of the land (the man selling it to me) to grant her an easement.

    It sounds to me like they are merely threatening court action so that they can get an easement granted, or else they would simply seek the court action in the first place.

    I don't want to inherit this problem when I purchase the land, so any advice offered would be greatly appreciated.

    Thank you,
    Matt

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,240

    Default Re: Adverse Possession - Michigan - Septic Field

    As you say, you don't want to inherit such a problem. It's up to the seller to clear up problems such as this.

    Since the seller seems to be previously involved with both the neighbor's parcel and the associated septic leach field, the seller needs to straighten this out.

    There is not much to go on here. It would be important to know the history of how the lot was sold to the neighbor and what additional rights, if any, were conveyed.

    It is unlikely that the neighbor has an adverse possession claim simply from the maintenance of the leach bed. A prescriptive easement is possible.

    You will certainly need to have legal representation in this transaction, even if it appears to you that the seller has cleared up the problem.

    It sounds to me like they are merely threatening court action so that they can get an easement granted, or else they would simply seek the court action in the first place.
    That's what it sounds like.

  3. #3
    Join Date
    Oct 2009
    Posts
    5

    Default Re: Adverse Possession - Michigan - Septic Field

    Good advice, thank you. I'll be getting an attorney to cover myself, and I'll certainly make the seller deal with this issue before purchasing.

    A few related questions:

    1. If she's able to get a prescriptive easement, would that allow her to only use the land for the existing septic leech field, or would it allow my neighbor to put a new one in to replace the existing one when it fails. It was installed in 1971 and has got to be close to the end of it's useful life.

    and

    2. If after I purchase the parcel, is it legally possible for me to grant her easement for the existing field only and not for any future fields which have to be put in to replace this one when it malfunctions?

    and

    3. What if she sells her house? Will the next owner retain the easement?

    Thank you for any advice you can give,
    Matt

  4. #4
    Join Date
    Jan 2006
    Posts
    25,763

    Default Re: Adverse Possession - Michigan - Septic Field

    The elements of adverse possession in Michigan are: actual, visible, open, notorious, exclusive, and uninterrupted possession of the property that was hostile to the owner and under cover of a claim of right for a fifteen-year period. Rozmarek v Plamondon, 419 Mich 287, 295; 351 NW2d 558 (1984).



    tell them to provide evidence that the possession was open and notorious and visible.

    A leach field is a hidden encumbrance.


    2. If after I purchase the parcel, is it legally possible for me to grant her easement for the existing field only and not for any future fields which have to be put in to replace this one when it malfunctions?
    I would respond with an offer of a limited license to allow the continuance of the use of the land only for the current use of the leach field and if the leach field fails, the license expires and she must move her leach field elsewhere.
    I am not an attorney and any advice is not to be construed as legal advice. You might even want to ignore my advice. Actually, there are plenty of real attorneys that you might want to ignore as well.

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,240

    Default Re: Adverse Possession Claim Over a Septic Field

    1. If she's able to get a prescriptive easement, would that allow her to only use the land for the existing septic leech field, or would it allow my neighbor to put a new one in to replace the existing one when it fails. It was installed in 1971 and has got to be close to the end of it's useful life.
    A granted prescriptive easement will likely allow for the the maintenance and replacement as necessary.

    2. If after I purchase the parcel, is it legally possible for me to grant her easement for the existing field only and not for any future fields which have to be put in to replace this one when it malfunctions?

    Possibly. But if she can obtain a prescriptive easement, she will have the right to to enter and maintain her property.

    3. What if she sells her house? Will the next owner retain the easement?

    The new owner can obtain whatever rights the grantor owns, based on the language of the granting document.

    As I suggested earlier, you don't want to enter into any transaction such as this without legal representation.

  6. #6
    Join Date
    Oct 2009
    Posts
    5

    Default Re: Adverse Possession Claim Over a Septic Field

    Thank you for all the help, gentlemen. Does anyone know the criteria that must be met to successfully obtain a "prescriptive easement" in Michigan?

  7. #7
    Join Date
    Jun 2009
    Location
    Houston, Texas
    Posts
    75

    Default Re: Adverse Possession Claim Over a Septic Field

    Matt Hugo ask....

    "Does anyone know the criteria that must be met to successfully obtain a "prescriptive easement" in Michigan?"

    Here is a court case that explores some of the elements necessary for perfecting this.


    http://caselaw.lp.findlaw.com/script...5C4363&invol=2

    Typically adverse claims have a 15 year time fuse in Michigan.

    The posters above are giving you good advice in my opinion.

    Hope that helps.

  8. #8
    Join Date
    Oct 2009
    Posts
    5

    Default Re: Adverse Possession Claim Over a Septic Field

    Well, since the only element of adverse posession law that isn't necessary for a successful court order of prescriptive easement, I don't see how my neighbor can have a successful claim for either one.

    My neighbor's attorney claims that her septic leech field was placed in the parcel I wish to buy by the man who built her home, the same landowner who is trying to sell me the parcel now.

    It would seem to me that if the septic field was put there by the owner of the land that there would be no claim to either adverse possession or prescriptive easement because there was no hostile element to the land's usage. Permission to use the land for a leech field is implicit since it was placed there by the landowner, not the person seeking easement or posession.

    Thoughts?

  9. #9
    Join Date
    Jan 2006
    Posts
    25,763

    Default Re: Adverse Possession Claim Over a Septic Field

    Quote Quoting Matt Hugo
    View Post
    Thank you for all the help, gentlemen. Does anyone know the criteria that must be met to successfully obtain a "prescriptive easement" in Michigan?
    I already had in my post

    Quote Quoting Matt Hugo
    View Post

    It would seem to me that if the septic field was put there by the owner of the land that there would be no claim to either adverse possession or prescriptive easement because there was no hostile element to the land's usage. Permission to use the land for a leech field is implicit since it was placed there by the landowner, not the person seeking easement or posession.

    Thoughts?
    I would agree
    I am not an attorney and any advice is not to be construed as legal advice. You might even want to ignore my advice. Actually, there are plenty of real attorneys that you might want to ignore as well.

  10. #10
    Join Date
    Oct 2009
    Posts
    5

    Default Re: Adverse Possession Claim Over a Septic Field

    Since my last post in October, the owner of the property decided to sell me all 37 acres instead of just the 10 that I had surveyed. My neighbor (with the septic field) was ignorant of my ownership of the property and sent the man who sold me the property a letter asking to purchase the parcel which contains her septic field.

    In turn, I wrote her a letter offering to sell the parcel or offering an easement to use it for her septic leech field.

    Since she has made an offer to purchase the piece of property, does this shoot another hole in her ability to seek adverse possession? If she's already asked for an easement and then made an offer to purchase it (both in writing), isn't her adverse possession claim now illegitimate? I got a call from her daughter today saying that she was still wanting to pursue possession through court order. They're trying to use this threat to get me to reduce my price.

    Also, I have title insurance in the amount of $20,000 for the property. Does title insurance typcially pay for legal costs associated with defending the title? I've read the title insurance policy. It's very brief.

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