I am in Virginia and purchased a house that has a drainfield that exists onto a neighbor's property which is nothing but cow field. The neighbor doesn't even have a house there.

Turns out that the septic tank was an illegal rig built about 70 years ago. The County has records of the whole transaction that never seemed to be resolved.

When we purchased the house about 15 years ago, the Septic Company just did a walkover of the septic system...not sure how they climbed the fence to go onto someone elses property but whatever.

Now it is 2020 and the lender demanded an inspection of the tank and distro box which the septic tank inspectors asserts have both failed. There is only one drain field line!

To make things worse no easement was ever granted and there is no easement in the Plat nor filed with the court. Oh it gets better!

My neighbor has refused to grant easement and refuses to sell the land where the easement would go...I don't have the money to buy the land anyways but just letting you know! So I have a lawyer dealing with this situation but he is not very optimistic about the situation. The courts are largely closed up/backed up due to Covid and the neighbor has an affirmative defense against going to Court due to Covid and a health issue. Before you tell me that you wouldn't grant easement either...I get it. However, I never granted easement and this "neighbor's" cows and bulls have gotten through his fence and entered my yard several times. I once woke up with an angry bull staring at me urinating.

We have a buyer, the house has been under contract for months now and the buyer keeps hanging on. We do have an out on this as sellers as we can break the contract if repairs exceed $1500.

The buyer is financing and even with conventional the bank needs an easement and a clean septic inspection. I can't just hand the man $15k and tell him to go deal with it. (The septic system functions ok in my opinion in reality).

Oh it gets worse. We would just be breaking even on that house even after 15 years due to zero down and high interest rate at the time. Someone knows someone who *might* be able to fix this for $10-12k provided easement is granted....so just to get away from it we have to go 12k in the hole which is starting to sound fine since it is a secondary home.

If it can't get any worse it does....An OSE came by and advised that the septic must go on the neighbors property because the soil is not suitable!

I called around asking about the alternative systems that everyone here advertises and they are even more expensive. Any questions about it results in....doesn't matter if you are using an alternative system...the soil still needs to be good. The conversation quickly ends and no one wants to talk.

....and the worst of all....I am Law Enforcement with a High Level Security Clearance.

I could lose my job for walking away from all of this!

I know this isn't a legal section, just giving you the totality of the circumstances. I see no way out technically speaking with regards to the septic.

Just thought that I'd ask so that my realtor and I don't have to work in a vacuum before I throw in the towel and just say gotta do what I gotta do!

Thanks.

 

All we can give you are opinions.
Your septic is on the neighbors property...... end of discussion.
No legal leg to stand on. Nothing to go to court with.

Technically that should have been addressed when you bought your property. Your neighbors giving you an easement would change the use of their land and even though there is nothing built there.... that easement would weigh heavily on any future building plans.

The neighbors wildlife visiting you is merely a nuisance. It wouldn't help this case.

 

True that it should have been addressed when I moved in but I had no idea that drainfield was on someone elses property. This came as a complete surprise to me. Even the septic tank location was not shown on the Plat and when I asked the County where it was 15 years ago they advised they had no records. Now in 2020 the County somehow found records that neither it nor the title company ever knew about.

Animals are a nuisance and doesn't help the case but it's illegal not keep control of your animals and he has been cited before for failure to keep them off the property of others. I only mentioned the animals before someone came in to say that I am a jerk for expecting this guy to grant easement derailing the whole thread.

I do believe that this is an easement by necessity situation and looking for a technical remedy but I guess there is none.

 

"Just thought that I'd ask...."
So, what was your question?

First, I am truly sorry for your situation. These things do sometimes happen to good people and can be totally devastating.

Before I start I will be clear that I will not consider purchasing your property but there are others out there that will.

Now I'm going to be a bung hole and speak my cold hard truth. A property is only worth what someone will pay for it. You may "think" you know what your house is worth and have found someone that wants to buy the property at that price but unless they can close (put down the money) they are just wasting your time.

You need a special buyer that can get a loan (probably not a home mortgage) or you need a cash buyer. I've done well buying troubled properties, especially those with septic issues. It is a business. It's all about the price and easy for me to walk away from any deal that doesn't benefit me. The seller always holds hope for what they "think" their house is worth but time is on my side. My offers are cash, as is and the closing can happen as fast as the seller's lawyer can move. But, over time my offer price usually goes down as the property degrades and the seller's position becomes more dire.

The key take away is that every property can be sold. It just depends on price.

 

Did you get title insurance? This would be a typical claim.

 

Uhmmm....my question was whether or not there is a technical way out of this like a holding tank or some other technology.

I had a cash buyer ready to go before I knew about this situation but decided to go with the buyer who was ready.

Cash buyer would have had me breaking even. My house is a plain old farmhouse. Nothing special about it. Sure, it is a seller's market and inventory is super low here but I have no delusions about the worth. I just don't have the 30k or so cash to hand a buyer at closing. I just don't. Besides, how would that cash buyer deal with this situation any more effectively then myself and my lawyer. He'd still need easement unless he went with an alternative system.

Also, I can't help wonder how the bank would get things in technical order given that they would face the same logistical situation that I would? Seems they have the resources to fix things but a regular guy doesn't.

 

Tolyn, sorry the idea of Title Insurance makes sense but how do I know if I got it? So long ago. Interesting. Lawyer seems to think that anything to do with the Title Company would be outside of statute of limitation.

 

I reread your post and I do not see that question anywhere.

If it is a cash buyer then sell it "as is" the only thing that would hold up the sale would be the local city, county, state or a lender. However, you said it is a cash sale so there should be no lender.

Look through your closing paperwork for the property. I do not know what the statute of limitations would be on title insurance.

 

Question was implied here sorry if my articulation is not perfect or perhaps it is just a localized way of expression...

"I see no way out technically speaking with regards to the septic.

Just thought that I'd ask"

 

No, I *had* a cash buyer but I chose the current buyer who is using a conventional loan instead of the cash buyer. I could sell as is but once the item is disclosed a reasonable expectation would be that I'd need to come to the table with 30k.

Also, any idea as to why I can't do anything besides "quick reply"? I'd like to be able to respond directly to quotes as well.

 

In the quick reply "window" click the " and it will set up a quote box for you. then you can copy and paste or

 

Thanks for everyone's time here.

 

I'm no expert on septic systems, but why can you just block off the existing system and dig a new unit on your own property? I understand your statement about soil conditions but that seems like a cop out by somebody. Who says the land or soil conditions are not right and what conditions are they that prevent it?

Also your neighbor's refusal to cooperate sounds like it stems from a spiteful reaction to former conflict from the animals problem getting on you land or his inability to contain them.

Title insurance should be a mandatory thing for any land transaction.

 

Locally you have to have a soil scientist's approval to install a drain field. If he deems the land not suitable for a drain field they won't let you install one.

Tittle insurance - a lot depends on just what you are buying and how much it costs. I've bought property without but not without a tittle search.

 

I think jj94auto's problem is that he does not have the cash to pay for an engineered septic system. There are several types of systems that could be installed on the property so it comes down to the money. Either he takes out a loan to install a system hoping to recoup the investment with a higher sell price or sells at a lower price. You have to add up the numbers both ways and see which is more advantageous.

 

Sort of like having homeowners insurance, if you have a loan it's a requirement from the lender but once your on your own it's your choice.

 

To the OP:
You said a couple of things that I am not clear on:
The other property owner wont sell you a piece of the property for the septic.
You dont have the money to buy the land.

Ok so, Virginia is Virginia & Louisiana is Louisiana so it very well could be different. My exwife bought a piece of land with a mobile home back in the late 70's before we married & after a few years, we came home one day from work to find a gate up across our drive way. Come to find out, the drive way that was ONLY for our home was on someone else's property.
Obviously, we contacted our attorney and in the end, we traded land for land. This may be something you can work out with the neighbor. Give him a small piece of land along the fence line for a piece of land for the sewer. It only needs to be big enough to replace the sewer or line if ever needed. 20 ft wide X "X" ft long. Just do a little trading & it wont cost you any money. Give him "use of the property" if need be. Whatever it takes to get this issue resolved.

Now, let me say that in Louisiana, the law states that you have to give a person right of way to his property if he is behind you. I'm not saying this would help you as its not a "right of way" issue but, there maybe a some long lost law that would help you out like that. Or that you could use something like this in court to force him to trade off with you.

Good luck.......

 

How long has the septic system been in use, undisturbed, extending into your neightbor's land?

It would not be a matter of right of way because you have no suitable place for the septic system on your own land but rather it might be a matter of squatter's rights (the legal term is adverse possession).

If a sale falls through because of a problem that was only recently discovered, that is not considered walking away from the issue.

Certain septic systems that use a holding tank and/or an effluent pump and/or a mound use those components to spread out the leaching of effluent over a longer period of time compared with just the normal one gallon in, one gallon out of the septic tank. There is still the need to eventually perc' into the ground.

 

Allan hit my suggestions. There are other septic technologies that can help resolve poor soil quality. Amending the soil is a possibility as well, but it can get much more expensive. The experts will be your local septic companies - they'll know what is possible in your area based on local health codes. There are even some companies who will custom design a whole system for you and push it through the engineering review of the health department - but that's even more expensive as it's custom for your property. It can also take a long while.
Unfortunately, I'm not up on new septic technologies - but there are those out there who are.
But long story short, if your ground doesn't pass the standard perc tests, you're not getting a septic field installed cheaply.

I would discuss with your lawyer about adverse possession. It's a bit different since it's not specifically the land, but the use under the land. It varies a lot to do with local/state laws, so I certainly don't know what the chances are of following that path.

And lastly, it sounds like you have a mortgage, so you'll 100% have title insurance. This too is also gray area as title policies specifically exclude items that would require a survey or inspection - this septic issue involves both. But if you can find your mortgage documents, you should be able to find your title policy - and your lawyer can probably give you more information on how hard you should push them. There's no harm in opening a claim with the title insurance - worst they can say is no. Then it's time to figure out whether it's worth litigation with them and whether you have a leg to stand on.

Good luck. It's a crappy position to be in, and unfortunately, there's no simple answer.

 

I wouldn't go that far. I wouldn't rush to that judgment, you're talking 1950, most places didn't HAVE laws about septic tank installation. Further, If the county has records, then somebody did some sort of design and got some sort of permit. Disclosure, I'm a Realtor & Attorney, had a certification for septic systems. However, I'm NOT your Realtor or Attorney, and this isn't legal advice.

Don't overthink the problem.
You don't want to buy the land, you just want to make repairs to a pipe that has been there for 70 years.
The neighbor had constructive notice of the pipe on his property based on the county records.

Question - where the 2 properties subdivided sometime during that 70 years? As in, were they under the same ownership when the pipe was installed?

Now is when your lawyer needs to be "good cop" and you can be "bad cop". The pipe has been there for 70 years, his time limit for filing an ejectment action would seem to be long past. if the neighbor claims the pipes are HIS, then his refusal to fix his pipes could result in thousands of dollars of damages from your lost sale. If the neighbor claims the pipes are YOURS, then his refusal to let you fix the pipes could result in thousands of dollars of damages from your lost sale.
So, at this point, I'd have your lawyer draft a nice letter along the lines of
Dear Neighbor,I see two options here,
Either-
You contact YOUR title insurance company, who guaranteed there were no encroachments onto your property even though they had constructive notice of the pipe from the plans on file at the County.
My client will contact HIS title insurance company, and then we will both waste months and money with depositions and lawsuits to figure out whether the pipe would be an easement-by-prescription, an easement-by-necessity, or the subject of a private action to condemn a right of way for access to repair the preexisting pipe. Either way, this will come down to you convincing a judge how horrible it would be for my client to repair a pipe buried under a cow pasture, where it has been for 70 years.
OR
My client could take the money he would spend going to court, and give it to you, in return for an easement This would save you ALL of the money of going to court,

 

One aspect of adverse possession is "open and notorious use". If no one knew of the location I do not see how it could be open and notorious.

Your lawyer might consider private condemnation of the sewer area but if you can not afford to buy the land you can not afford his services or the court's determination of value and you said the courts are jammed.

Any chance the county will condemn your structure as uninhabitable? Hope not.

 

In some cases public plans like County's sewer permits can be "open and notorious" as "constructive notice" or things you are presumed to know because you can go look them up in govt. records.

BUT, the OP doesn't want "adverse possession" i.e. extend his yard to takeover the cow pasture.
This isn't about possession or title, just the ability to access and repair existing underground pipe(s).
The deed doesn't usually mention easements for underground services: sewer lateral, public water line, underground electric service, and multiple small round easements where the poles for telephone or electric are; and the paved street & sidewalk (in areas where you own to the center of the road.) But that doesn't mean that because there is no recorded easement, you can block the repaving of "your" portion of the road, or keep the electric company from "encroaching into your airspace" to trim trees off the wires.

The idea is, laying the pipes the 70 years ago, established possesses of that underground area along with the future right to fix the pipes later. There are 2 sides to the coin. OP's problem of his pipes on someone else's land, Neighbor's problem of underground pipes encroaching onto his property. The linking issue is that if they have been there for 70 years, the time limit for the owner(s) of the cow pasture to go to court to remove the pipes should have expired long ago.

One POSSIBLE option would be for the OP's lawyer to file an preliminary Injunction, to prevent the Neighbor from interfering with the existing use of the drain field, allowing OP to inspect and do basic repairs. Then asking for a permanent in-rem injunction allowing inspection, maintenance and improvement of the drain field. I think a mortgage company would accept a court order; it is just as "official' as a recorded easement. (you enforce an easement is by getting a court injunction.)
But all of THAT is up to the OP's attorney, who would have to check specific state law.

-Disclosure, I'm a Realtor & Attorney, had a certification for septic systems. However, I'm NOT your Realtor or Attorney, and this isn't legal advice.

 

Thanks, my attorney filed for relief. I did not see all of these posts. For some reason I stopped getting alerts!

Appreciated.

 

You have this thread set up for instant email notification.
Did you change your email address from your signup email ?
The notifications will only go to your signup address.

 

No, never changed it. Last alert that I got was for Norm201's post. I agreed with his perspective but never posted anything. No additional alerts. I just happened to come back and noticed all of this.

 

Make sure they aren't being sent to your spam or promotion or social folders.
I've noticed many system sent notices get sent to my social folder.

 

Nothing in SPAM. Wondering if my mailbox might have been full at that time. My gmail account tends to hover at 97 percentage capacity and whenever google is on about whatever I do doesn't seem to reduce my mailbox size.

 

A long shot...but contact Virginia Onsite Wastewater Recycling Association. 540-377-9830 and ask your questions. They are a trade association. www,vowra.org

 

My two cents... A lot of lake properties around here use holding tanks, that will have to be pumped, also for poor soil conditions a raised septic system is basically built on top and then covered with dirt and uses a pump instead of gravity