Lateral Lines from Septic System Encroach on the Neighboring Property

[animalfriend]

I have a house under contract (a foreclosure) in the state of VA. When doing inspections today, the adjoining neighbor informed me that the lateral lines from the septic system encroach onto his property and that I would have to move them. The tank is on the land I'm buying as are most of the lines, with about 50' of the lines extending onto his land.

He told me that he built the house and had the septic installed in 1970. In researching the deeds, I discovered that at the time the septic was installed, the lot was owned by the same person as the lot where it encroaches. The surname is the same as the man I spoke with, though the given/first name is different, so I'm surmising the property was all owned by one of his relatives when the system was installed.

The house has changed hands multiple times since it was built in 1970 and the person with whom I spoke today last acquired it in 1990 and sold it in 1991. When I asked him if he'd consider selling the adjoining lot (steep, unbuildable, and virtually useless), he said that he just sold it to someone else. He also said that he recently plowed his garden and dug up the lines (doubtful because after speaking to the county, we learned the lines were approximately 3' deep). He said the system would have to be redone - and moved off his lot - before the house could be lived in.

I should add that this person told us he also put an offer on the house - and was most likely upset that our offer was accepted, so he's trying to discourage us.

I'm thinking this septic system would qualify for an implied easement. It was installed at a time when both the lot with the system and the lot where it encroaches were owned by the same person. It's been used continuously since (with the exception of the past year since the foreclosure). It's necessary for use of the house. It's particularly bothersome that the person who claims to have installed it is now objecting to its existence!

If I can have new lines installed at a reasonable cost, I will do so to avoid a war with my new neighbor, but the 1-acre lot is very steep and I'm surmising they were originally installed where they are because the rest of the lot was not suitable.

I love the lot/house and would really like to purchase it, but obviously, I don't want to buy a lot without a septic system and no other options.

I'm wondering if this sounds like a case of implied (quasi) easement (or easement by prior use) and if so, what recourse do I have against him if he's destroyed the lines, as he's claimed (or does so in the future)? And are these cases typically cut-and-dry or is a long court battle likely to ensue?

[jk]

you might be able to argue for an implied easement but there is a good chance it will cost you more than simply moving the line. If you do decide to sue, there is no guarantee of winning either.


then, since you are trying to buy this house, do you really think the seller is going to wait for you to try to settle this?


You need to either require the seller get it settled before closing or plan on spending a lot of money on arguing the situation after the fact or to move the sewer line.

I would also suggest a mortgage lender (if involved) will not willingly involve their money in such an unknown situation.

[mudpie]

IMO, I wouldn't worry about it. Why? Because the septic system has been in place for 40 years and has been used openly ever since. Also the property sold multiple times; mostly with surveys and inspections, but yet no other objections to the lateral lines.. This is, in my opinion, and pretty straight forward case of a prescriptive easement. You may want to mention that to the neighbor.

Now from the neighborly point of view, do you really want to piss off the new neighbor before you even move in?

You should at least speak with your attorney.

[animalfriend]

Many thanks for the replies. In the interests of both neighborly relations and also to avoid legal fees, I would try to move the lines. My concern is the slope of the lot may not allow it.

mudpie...I understand what you mean about not wanting to piss off my new neighbor and I'd like to avoid that if at all possible. I asked if he'd consider selling me the lot, but he said he just sold it (doubtful). And as I said, I will try to move the lines from his land.

I learned from the county that he wanted to install a septic on the lot a few years ago and they wouldn't allow him because it wouldn't accommodate it (the only fairly level spot are where my lines supposedly encroach about 50'). It's basically a useless piece of mountain land, pie-shaped with virtually no road frontage (maybe 10'), too narrow and too steep to build.

In the interest of being neighborly, I did offer to buy the land and I'm meeting with the county health department and a septic installer today to see if I can move the lines. While I feel I'm trying to be a good neighbor, it's being met with spiteful resistance - most likely because he wants the house (which he's told us.) He's allowed every other owner for the past 40 years to use the system.

I want to avoid a legal battle; I'm just looking ahead at "worst case scenario" and hoping for a viable solution.

[jk]

A PE claim requires notorious and adverse use.

You have 2 problems in this to even attempt to make a claim.

If the use was not notorious, which an underground, buried, hidden pipe would be, you have failed on a critical requirement.

So, if you want to claim the guy knew about it, then the second part, adverse use, is most likely not applicable. From the OP's own words:

He's allowed every other owner for the past 40 years to use the system.

If the use was permissive, it is not adverse.

Really looks like a tough fight if you choose to try with a real good chance of losing.

[LandSurveyor]

I think it may be an implied easement, created upon separation into two parcels. I agree that this is not likely to be seen as a prescriptive easement.

The Virginia case appears to be Muse v. Gish 1912 but I am not able to pull it up and read it right now.

I would suggest to the OP that a permit might have been issued in 1970 for the septic system. I would be checking that out. There are probably local regulations controlling the modification of existing permitted septic systems and the neighbor's threatened removal of part of the leach field could be seen as an unauthorized modification.

Good Luck!

[mudpie]

Perhaps the land was subdivided after the system was originally installed, thus an implied easement.

[jk]

it surely could be but is it a sure thing and is it cheaper to fight in court than to find an alternative?

[animalfriend]

Thanks so much for the input. I've done additional research and discovered that the person who owns the lot (who wants it moved) once owned both lots and while I thought he owned them both at the time it was installed, I was mistaken. He gave one lot (where the house was built) to his son on 9-11-69. His son applied for the septic permit on 9-16-69. The permit was approved and the final installation inspected on 2-25-70. Interestingly, this permit shows the system entirely on the parcel with the house.

The son sold the house in 1978. That person sold the house in 1990 (to the man who's objecting) and he sold it in 1991. At that time, a survey was done and it showed the lateral lines on his adjoining lot. I visited the surveyor yesterday and he checked his notes for the job, which indicated they found evidence the lines extended onto the adjoining lot approximately 17'. This was noted as being approximate.

The house was sold again in 1995. I visited the attorney who handled that search/closing and he said there is no easement. You'd think this would have been caught and addressed previously - particularly because the purchase was financed each time - but it wasn't.

So...I went to the county to find out what I need to do in order to move the lines. Still awaiting that outcome while I research alternative systems.

I would have thought that an implied easement would have been created when he allowed the system to be installed as it was - and allowed its use for the past 40 years. But I realize this isn't necessarily so and it would be risky to make the purchase in hopes of winning such a case. I'm hoping for good news from the county. I've spoken with two septic installers and they both thought the lines could be moved. It would be fairly expensive, but it can be done.

Thanks again for the helpful input.

[jk]

thanks for the update and let us know how this all turns out.