Septic Field Encroachment on a Vacant Lot
My question involves real estate located in the State of:Michigan
My husband and I want to purchase several lots from a family member. The lots are wooded and vacant. We had a survey done on the lots and also went to the courthouse in the county to research the property.
The neighbor to the south had a home on his property that had an unfortunate event and he had to totally rebuild his home about 3 or 4 years ago. The previous home,that was destroyed, had a septic system that was installed in 1990's. The home is used as a summer home with generally only weekend usage. When the home was rebuilt the County gave the owner a Write Off on the septic system and allowed him to use the septic system of the prior home. However, when we pulled the write off information for the septic we found that the existing septic field is encroaching on the property we we hope to buy. The write off states that there is no easement for the encroaching septic system and if the owner of the property (which is the property we want to purchase) objects to the septic on their property then the homeowner needs to get a new permit and put in a septic that conforms to current laws. The property owner who we want to buy the property from was never notified of the encroaching septic and objects to the septic encroachment. The property owner of the lots we want to buy is out of state and has a very ill family member so is unwilling to put a lot of effort into this.
We have an attorney but have not discussed this issue yet.
The homeowner is furious we are buying the property and will be putting up a fence our side of the property line. He says he is going to sue the current owner for access to his septic.
The homeowner purchased his property in 2006 so he has not owned the property for 15 years. The septic was put in by the prior owner. The homeowner had a survey done when he rebuilt the house and knows he is encroaching.
Advice?
Is there any state agency that I can report this county to for issuing a write off for a nonconforming septic on a new home?
Re: Septic Field Encroachment on a Vacant Lot
No agency is going to take action on the septic field, or slap the local government's hand for allowing an existing septic field to be repaired.
If you choose to buy the property with this issue still unresolved, you should modify your bid accordingly -- anticipating legal expenses and the possibility that the neighbor will gain long-term use of the portion of your property that contains his septic field. Speak with your real estate lawyer about what a court is likely to do upon hearing the neighbor's case. Talk to your lawyer about the costs and burden you will be assuming if you buy the property and the neighbor sues, or if the neighbor sues and you proceed with the purchase despite the fact that the lawsuit is in progress.
Personally, I would want this issue resolved before I purchased the property -- whether by an enforceable agreement as to when the encroachment from the septic field would be removed (if that's an acceptable outcome), or with its removal prior to closing.
Re: Septic Field Encroachment on a Vacant Lot
The septic field was never repaired.
The original home had a gas leak and essentially blew up. There was nothing left, just a bit of basement foundation and the underground septic. A totally new home was built on the site. When the new home was built the county allowed the owner to use the old nonconforming septic system which was encroaching on the property we want to buy.
On the septic Write Off permit for the new home the county stated that the owner of the septic system did not have an easement to have the septic on another property and if the property owner objected to having the septic on the property, the owner of the new home would have to apply for a new permit and install a conforming septic with appropriate set backs. My husband has the copy of the Write Off. When he returns I will post the language of the permit verbatim.
Re: Septic Field Encroachment on a Vacant Lot
As I see your choices are to (1) not buy the property. (2) buy the property and try to enforce the Write Off that says the County will require a new permit and a new septic system that conforms to current zoning and septic setbacks (would remove the system from your property) Or (3) buy the property and sell your neighbor an easement for the system. The value of which would almost be the cost of installing an entirely new system. The risk is will the County back up the Write off.
Re: Septic Field Encroachment on a Vacant Lot
I don’t see the write off being enforceable now. If the owner of the encumbered land did not object at the time, it could be argued as an implied easement. Neighbor had the opportunity to prevent the situation of the septic being on his land or allow it. He apparently allowed it.
I see the op’s options as;
1. buy the land but live with the septic until it requires replacement.
2. Don’t buy the land.
Re: Septic Field Encroachment on a Vacant Lot
We have yet been privy to the language of the permit or the write off so it is hard to say what the sale of the property means to a new owner.
Re: Septic Field Encroachment on a Vacant Lot
The family member who owns the lots was not aware of the encroachment until we researched the paperwork on the lot and read the write off permit the neighbor had for the septic system and told her about it which has only been a few weeks. The owner was not told of the encroachment by the county. She would have never known had we not looked at the septic writeoff and told her. If the owner had known, she would have objected.
From the write off:
On-site sewage Disposal (This is what was written following the heading)
No evidence of failure of the OSTOS was observed. Installed and approved under permit XXXXXXXXXX (Year in 1990's). Part of the OSTOS is installed on the adjoining property-PHOM is not aware of an easement allowing this-if the adjacent property owner requires removal of the OSTOS from their property a permit must be obtained to replace the OSTOS and it must meet current code including elevation above flood plain and isolation distances to property lines and surface water, etc.
Re: Septic Field Encroachment on a Vacant Lot
Quote:
The homeowner purchased his property in 2006 so he has not owned the property for 15 years. The septic was put in by the prior owner. Th
michigan allows tacking of time. If all other elements of adverse possession are met, given the statutory period of time has been met, it would allow a viable adverse possession claim.
I have doubts the use was open and notorious (requirements under MI adverse possession law) adequately to qualify (but that is up to a court to determine). The courts may still craft a solution rather than command the neighbor remove the encumbrance.
How is it that the encroachment was discovered when the replacement house was built but not when originally installed?
Would you be willing to accept an easement to allow the system to remain until it requires replacement?
Re: Septic Field Encroachment on a Vacant Lot
We would consider an easement, however, we would like to make a road over the area where the septic field is suspected to be to get building materials on the lot. So if they can live with a two-rut road over the septic field, I am fine letting them keep the septic but I would like to put a limit on the time it can be there as it will impact our placement of a well.
When the septic was first installed in the 1990's nobody had surveyed the property. The adjacent property owner had a survey done in 2005 and established the lot line. It was not until the original house had a gas leak and blew up 3-4 years ago and the new house was built that the septic placement became an issue. The Write-Off permit was for the new home to replace the house that blew up 3-4 years ago. When we found the Write-Off permit it was the first time anyone in the family had any idea of the encroachment. The County did not let us know when they issued the permit and the property owner certainly did not let us know. It was a trip to the court house and finding the septic Write-Off permit that clued us in to the encroachment, and that was very recent. It was a surprise.
Another question, I know the septic field is on the property or that there is not adequate setback but we don't know exactly where it is. If we dig a hole to plant a tree and damage the septic, are we liable?
Re: Septic Field Encroachment on a Vacant Lot
Well, a road can wreak havoc on a field system. It is recommended to never drive over a field system but definitely do not use it for a roadway.