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Columns: Real Estate Adviser
Steve McLinden   Expert: Steve McLinden
Real Estate Adviser
A friendly talk may prevent a squabble with new neighbors.
Real Estate Adviser

Neighborly chat may prevent big stink
 

Dear Steve,
I saw your column about adverse possession and wondered if it might apply to my case.

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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.

Bankrate.com's corrections policy-- Posted: July 22, 2007
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