Avoid financial disaster from unrecorded easement

Consult public works easement maps before buying home

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Apr. 18, 2011

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Consult public works easement maps before buying home

Dian Hymer
Inman News™

Don't make the mistake of assuming that by hiring professionals to inspect the property you're planning to buy you'll be informed about all issues that might affect your use and enjoyment of the property.

In one case, buyers purchased a trust property that was sold by the trustee of the deceased owner. The buyers paid for title insurance, had the home inspected by structural pest (termite) and home inspectors. They even had the sewer lateral checked. The sewer lateral is the line that connects the house's waste plumbing to the city sewer line.

After moving into the house, the buyers improved the property, as it was in a state of disrepair. This included adding a large deck and spa. Later, they had a problem with the sewer line. It was only then that they discovered that the waste plumbing from the house didn't hook into the city sewer main line; it connected to a septic tank. To make matters worse, the deck and spa were built over the septic tank.

There was no way to get to the septic tank without dismantling the deck and spa. Furthermore, the city of Oakland, Calif., where the property was located, had a moratorium on septic tanks. It was not even possible to take out a permit to repair a tank. The buyers were forced to hook up to the city sewer system at great expense.

How could this disaster have been avoided? Checking recorded easements against the property might or might not have helped. In some cases, sewer easements are recorded against a property where no sewer exists. In other cases, easements exist but haven't been recorded so they aren't picked up when a title search is done.

Title companies search the public record and report what they find. They protect for ownership, liens and recorded easements. They don't insure unrecorded easements. But unrecorded easements, like for sewer, drainage or utilities, can restrict the owners' use of the property. You're not supposed to build over an easement.

HOUSE HUNTING TIP: It's a good idea for buyers to visit the local public works department and find out how and where the home in question hooks up to the city sewer line. Buyers often don't carry through with this because they're too busy. It's important to make time, or to hire someone to go to the city for you, and get copies of any easement maps that affect the property.

When a development is laid out, the easement map is usually recorded. However, changes that are made to the map over the years usually aren't recorded. In one case, an easement map was recorded in 1910 in a neighborhood in Berkeley, Calif. Two lots were combined into one and a house was built on the property in 1917. When the preliminary title report was issued, it showed an easement running down the center of the property.

Further investigation showed that the 1910 easement had been abandoned and the city sewer main was routed around the house and across the backyard so that it didn't run through the house. Although these changes were clearly marked on the city sewer map, they were not recorded in the title record.

Problems can arise when parcels are split and easements that should have been created were not. A property in Piedmont, Calif., had originally spanned two streets and hooked up to the sewer on the street behind the house. An easement was supposed to have been recorded in favor of the older house when the lot was split, but it wasn't. The neighbor was not cooperative.

THE CLOSING: To sell the house, the owner of the older house had to hook up on a different street at a cost of $70,000.

Dian Hymer, a real estate broker with more than 30 years' experience, is a nationally syndicated real estate columnist and author of "House Hunting: The Take-Along Workbook for Home Buyers" and "Starting Out, The Complete Home Buyer's Guide."

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