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 Dear
Steve,
I saw your column about adverse possession and wondered if it might apply to my case.
When we moved into our home, our next-door neighbor
was a family friend who admitted to us that her septic tank was on our property
by about two feet. She sold the house to another family member so we didn't take
issue with it then either. However, the relative is now selling and the pre-sale
survey shows she was right about the property line. We now
feel the tank should be moved before the sale or that the purchase agreement should
require someone to move it. What are my options?
-- Stephane  Dear
Stephane,
Adverse possession, which affords people the ongoing right
to property that they've openly used for several years if the true owner hasn't
objected, probably doesn't apply here. In most adverse possession cases, an open
use of the property must be established and the septic tank is underground. Conceivably,
however, your tacit consent in letting your neighbors use your land could work
against you if this ever goes to litigation, which would be a worst-case scenario
for both parties because so little is at stake, it seems.
Before
you proceed with any land-reclamation tactics, I'd first have a thorough title
review done to determine if there have been any septic-tank easements granted
to any past owners of the lot next door. If there have been, you probably don't
retain the right to make the new owner move the tank. If there haven't been, I'd
first have a frank discussion with your current neighbor before you do anything
drastic. Tell him about your concerns and earnestly try to work something out.
This could include buying or leasing the property or his sharing the costs of
moving the tank with the new owners. He certainly doesn't want a boundary dispute
clouding the sale. Whatever happens, the current neighbor should note the survey
and property-line issue as part of his disclosure to the buyer. You
could further muddy the (still) waters by threatening to terminate use of the
tank. But you won't exactly be starting things off on the right foot with your
new neighbors. A better solution might be to cobble out a conditional easement
agreement amending the sales contract where you grant the new neighbor use of
the land occupied only by the septic system -- perhaps for nominal recompense.
It should also stipulate that the easement will expire if any of the following
conditions occur: (A) the system fails and has to be replaced or exhibits constant
maintenance problems or health issues affecting you or your property, (B) the
city/county comes out with new standards for septic systems and the system has
to be upgraded (C) a physical addition to your property or to your neighbor's
property necessitates the system's removal and (or) its replacement. By
rights, your expenses in this should be kept at a minimum since the tank is on
property you control, especially if you are already paying for a title search
and (or) securing legal representation, which might not be a bad idea if this
gets complicated. Hopefully, the septic-tank location won't
spill over and cause a neighborhood "stink." I wish you luck.
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