LAND USE REGULATIONS

In This Article
Types of Regulations
Boundaries
Easements & Rights of Way
Protective Covenants, HOAs
Wetlands
Flood Plains
Water & Mineral Rights
Endangered Species & Historical Sites
See also ZONING            View all articles on IS IT BUILDABLE? 

Land use is governed by a wide-ranging set of regulations at the local, state, and sometimes federal level. Uses may also be restricted contractually through protective covenants and other deed restrictions. Before wasting too much time evaluating a piece of land, first make sure that you can use build on it and use the land as planned.

TYPE OF LAND REGULATIONS

Land uses for buildings are typically governed by a combination of zoning ordinances,  subdivision regulations, and building codes, and it is not uncommon to hit snags along the way to getting a building permit. In addition, health department regulations typically govern septic system design and approvals, and state or federal rules may preempt local regulations with respect to such things as water quality, wetlands, flood plains, endangered species, toxic materials, and other environmental issues. Moreover, a particular lot may have restrictions on the deed through easements, rights-of-way, covenants, or other encroachments. For example, if the previous owner donated the development rights to half the lot through a conservation easement in order to get a tax write-off, no one can build on that portion of the lot forever (or “in perpetuity” in lawyer-speak). What you can and cannot do on the land, such a cut trees for views, will be determined by the specific language in the easement.
A title search will determine if the seller has clear title to the property, and will identify deed restrictions, such as easements, but will tell you nothing about zoning or other issues that interfere with your building plans.  The lot may be unbuildable, or unsuitable for your project, because it is too small based on zoning rules, does not have adequate road frontage or access, has no potable water on site, has contaminated soil or water, is too steep, lies in a wetlands, or cannot pass a percolation or “perc” test,” the standard test required for the installation of an on-site sewage system in most areas. It is also possible that it was subdivided without following the town’s subdivision rules, called and “illegal split.” In this case, you should probably walk away. If you already own it, you’ll need to apply for a variance, but there are no guarantees you’ll get one.

Some states, such as Massachusetts,  have rules governing the minimum distance between well and septic systems on your own and abutting lots, which can be difficult or impossible to meet on small lots without a variance.  Nearly all states impose restrictions on building in  wetlands areas, and each uses its own definition of what constitutes a wetlands. Remember, legally defined wetlands don’t necessarily look wet,  have marsh plants growing, or have other easily recognized characteristics. Check your local and state regulations to make sure your project does not violate local regulations.

The list of potential problems is long. Each section below covers issues that may render a site unsuitable for your project due either to legal issues, high development costs, or quality of life. Maybe you can legally build on a site with extensive ledge,  inadequate well water, or a hog farm nearby, but do you want to? In many cases, the problems can be resolved, but this almost always takes time and money, and often carries a certain amount of risk that things will not turn out as you want (see Lessons Learned: Variance Granted – Neighbor Sues!).

BOUNDARIES

Love your neighbor; yet don’t pull down your hedge. — Benjamin Franklin, in Poor Richard’s Almanack, 1732

It is not always clear where the boundaries of a lot are located. Actual roads may not be built in accordance with the roads that appear on site plans or town maps, so-called “paper roads.” In rural areas, it is not uncommon for a neighbor’s barn or septic system to be partially or completely built on the land being sold. Or neighbors may be using the land for other purposes, such as recreation, parking, gardening, or who knows what, and may not be happy that they have to give up their free (and tax-free) bounty. They may even think that they own some of the land due to some combination of ignorance, disputed boundaries, and the old saw that “possession is nine-tenths of the law.”

There is more truth to that adage than you might imagine. An ancient principle from English common law called “adverse possession,” gives a person a legal right to claim ownership of land that they have been using for a certain number of years, uncontested by the legal owner.  If you find that neighbors are encroaching on your land, it’s a good idea to clearly mark your boundaries with a fence or wall as soon as possible, and if necessary, to ask the abutter to respect your boundary – and to document the communication. Under more contentious circumstances a “cease and desist” letter from a lawyer may be called for.

Conversely, with an unclear boundary, you could inadvertently build your house partially on your neighbors land – or too close to the boundary, violating setback requirements. The legal remedy for such mistakes can be severe – as in requiring the person in violation to dismantle or move the structure. In some cases, you may be able to negotiate with the neighbor to adjust the boundary. To remedy a setback violation,  you can apply for a variance from the local zoning board, but there are no guarantees that it will be granted.

Boundaries may be marked by wooden or metal stakes driven into the ground at corner points. In some cases, however, these are broken, missing, buried, or have been moved. So if there are any questions regarding boundaries, a survey is in order. This is especially important on a tight lot or where you plan to build close to one of the lot boundaries – and may be required by the

EASEMENTS AND RIGHTS-OF-WAY

An easement gives another party the right to use your land in specified ways. A right-of-way is a type of easement that allows another to travel across a portion of your land – perhaps right where you were planning to put your house or garden. For example, a utility company might possess and easement that lets them run a power line through the land you are considering. Or a previous owner may have donated a conservation easement, prohibiting any building on or alteration of a portion of the parcel you are viewing.  A neighbor may have a right-of-way allowing him to build a driveway across the parcel, or the town may have a right-of-way to build a road. Similarly, a drainage easement allows the town, county, or state to create a drainage ditch or “swale” above-ground or drainage piping below-ground depending on the specific easement.

In some cases, you can put temporary structures such as decks or sheds within the easement, but would have to pay to remove and replace the improvement if the easement holder needed access. If the town or utility needs to excavate to lay piping or other utilities within their easement, they are required to restore the property to the condition in which they found it. However, it may take a few phone calls to enforce this provision, and their work may still not be up to your standards.

Easements may be part of the deed and last forever, or they may be temporary, for example, until the death of the easement holder or a specific date. If an easement is not recorded in the deed, it should be written into the plot plan, restrictive covenants, or other legal instrument. Easements can cut both ways — they may enhance the value of your land or detract from it. If an easement is important to your land purchase, for example, you need it for road access to your lot, make the easement and your planned usage of it a condition of your offer.

PROTECTIVE COVENANTS and HOA REGULATIONS

When buying in a subdivision, there’s a good chance that the lot comes with deed restrictions called restrictive covenants. These are intended to preserve property values,  community character, and so on. You might agree with some – for example, no junk cars in the yard – but dislike others: “What do you mean I can’t hang my clothes out to dry!”

Who makes the rules.  The covenants and other rules restricting the use of your property are created and enforced by the developer or the Home Owner’s Association (HOA). What HOAs can and cannot regulate, and how they may enforce their rules, is governed by state law. Generally HOAs have the legal authority to:

  • Develop rules for the common good of the residents
  • Develop rules for common areas
  • Buy goods and services to maintain common areas
  • Assess owners to pay for common area costs
  • Enforce their rules with such things as fines, liens, lawsuits, and even foreclosure

Who enforced the rules? Covenants are not enforced by any government body, but rather by the developer or other homeowners through a homeowner’s association.  Enforcement is often uneven, but breaking a rule can lead to unpleasant consequences, including fines, liens, or lawsuits, and in extreme cases, foreclosure. Although enforcement is often uneven, it’s safe to assume that all the rules will be enforced.

What can be regulated. Covenants and HOA regulations  can cover almost anything you can imagine: pets (type and number), outdoor laundry, tree cutting, house size, style, and color, fences, satellite dishes, amateur radio operation,  outdoor holiday decorations, where you can park, and even who lives in your house beyond the nuclear family. The house may be subject to “design review” by one person or by a committee, who may have different tastes than you. Covenants can also be more strict that zoning laws, for example, increasing setback requirements or further limited your right to subdivide. The list goes on. Some common items include:

  • Housing size, style, and color.
  • Pets: type, size, number, and whether you can lets cats or dogs roam the neighborhood.
  • Noise: You may not be able to blast Led Zeppelin at midnight, even if allowed by town ordinance.
  • Landscaping: What you can and cannot plant
  • Fencing: Is it allowed and, if so, what type and how high?
  • Detached structures: size, type, and materials used for kids play structures, tool sheds, and other outbuildings.
  • Decorations: Can you build and elaborate creche in your front yard or festoon your entrance with giant scary spiders on Halloween?  These may be regulated.
  • Home businesses:  The type and size of home-based business may be restricted, or even prohibited, beyond local zoning laws.

Questions to ask. If  you are considering a lot in a subdivision, make sure you go into it with your eyes open. Ask the seller, sales agent, or developer about any deed restrictions. To be certain, check with the records department or courthouse of the local municipality. Ask them for any related to deed restrictions in the development you are considering. These will generally appear on a plat map for the subdivision, or will be described in a legally recorded document at the records office.

The covenants will also show up in a title search conducted by your lawyer, if you hire one, or by the title company before they issue you title insurance. If you have any concerns, you should make your offer contingent on there being no covenants or HOA regulations that interfere with your building plans or land use (see Lessons Learned: Covenants Protecting Whom?).

A related issue is association fees covering such things as private road maintenance, or the maintenance of shared wells, community septic systems, common land, or other commonly owned property. It’s best to enter these arrangement with your eyes open.

WETLANDS 

Wetland regulations are complex and exist at the federal, state, and often local levels (city, town, or county). Possible characteristics include seasonal standing water, a low spot that holds water for several days after a rain, a shallow water table, a pond or stream with gentle banks.  For a quick check, walk the site in springtime, a day or two after a heavy rain, looking for standing water or areas that are soggy underfoot. However, in some cases a designated and regulated wetlands may appear dry, may not contain marsh plants such as cattails, and may even be forested.

The Vermont Water Quality Division defines a protected wetland as

those areas of the state that are inundated by surface or ground water with a frequency sufficient to support plants and animals that depend on saturated or seasonally saturated soil conditions for growth and reproduction. These areas are commonly known as ponds, bogs, fens, marshes, wet meadows, shrub swamps, and wooded swamps. Wetlands often occur in association with lakes, ponds, rivers, and streams, creating transitional areas between dry land and open water. However, wetlands can also be isolated from any obvious connection to water when they occur where the topography collects surface water, or where ground water surfaces.

If you suspect your site might contain wetlands, talk with your local or state environmental department (DEQ), which will have wetland inventory maps identifying wetland locations. Many are now online. However, these maps are not always complete and not always up to date. They may miss some areas or include some that are no longer wetlands. The only way to determine a site’s status with certainty is to do a physical inspection of the site, including soils and plants, in accordance with state regulations. You can hire an environmental consultant to do a quick review and, if necessary, a more thorough (and more expensive) mapping of the wetland boundaries on your site. Some states provide some of these services for free or a nominal fee. Check with your state Department of Environmental Quality/Protection.

If a wetland area is known or suspected on your property, do not clear it, excavate or grade it, or alter it in any way until you fully understand the rules and have the required permits. Otherwise you could be hit with a stiff fine and be required to restore the wetlands area to its natural state.

Even if there are protected wetlands on your site, however, you may still be able to build on a dry portion of your site. In some cases, you may be allowed to drain and build in a wetlands area and “mitigate” the impact by restoring or creating wetlands on another part of the site — known as compensatory mitigation.

FLOOD PLAINS

Check your survey, local planning office, or county courthouse to see if any or all of your land lies in flood plain. Flood plains are defined by FEMA as areas with a 1% chance of flooding in any given year. That means that the likelihood of a flood in any 30-year period is about 25%. In 50-year period, the risk is about 40%.  By comparison, this is 27 times greater than the chance of a fire in your house, which is about 1 in 2,500 in any given year.

Zoning may require you to build a certain distance away from the flood plain boundary and may require also require that the building be elevated to a specified height. In some areas, buildings are elevated on piers with “breakaway” walls on the lower level designed to float away in a flood and leave the building above unharmed. Special septic system requirement may also apply.

Add to that increased insurance rates, loan difficulties, and very real risk of a flood, you should think long and hard about tempting fate in this way.

Whether or not you believe in global warming, many areas of the country are getting more rain and flood hazard maps are revised over time. Read more about Flood Plain Mapping and Flood Insurance.

While being in a flood plain does not mean that your land will definitely flood, being outside of a flood plain does not guarantee that you will be safe. Local water sources such as ponds or streams, local drainage conditions, and the topography of your site all come into play. If you are in doubt, get an engineer to take a look.

WATER AND MINERAL RIGHTS

Water rights. Owning a piece of land doesn’t necessarily mean that you own the rights to the water and minerals that flow across or underneath your land.  This is mainly an issue in the western states, where much of the available water is used for irrigation.  There may be different kinds of water rights for surface water, underground water, and springs,  and for domestic, agricultural, and industrial uses. In general, water rights are based on who filed for the rights first. In a water shortage, the person who filed in 1920 has priority over a 1960 filing. Especially in arid areas, it’s important to know what water rights run with the land you are buying. This could significantly affect the value and usability of the land. Since these rights are complicated and vary from state to state, it’s wise to get the opinion of a lawyer or water rights expert.

Mineral rights.  Like water rights, mineral rights vary from state to state. In general, ownership of the surface of the land does not guarantee that you own the valuable minerals underneath,  which may be owned privately or by a governmental body. Mineral rights generally extend to coal, oil, gas, and valuable minerals, but exclude the basic soil, sand, gravel, and bedrock that lie under most homes. Worst of all,  the owner of the mineral rights generally has the right to enter the property to extract their minerals – even putting an oil well in your backyard! If you’re in an area where oil, gas, and mining are prevalent, it’s worth investigating who owns the gold under your house. Read more on Mineral Rights vs. Surface Rights.

ENDANGERED SPECIES & HISTORICAL SITES

Other less common issues that can affect whether and how you can use a piece of land include the presence of an endangered species, an archeological site such as a Native American burial site, or special zoning restrictions imposed on environmentally sensitive site (see Special Zoning Districts).

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Comments

  1. JW McDougal says:

    Can Owner of Mineral Rights Restrict Use of Land?

    I’ve been trying to find this answer on my own and have come up empty handed and also get different answers from different people. My question is if a community owns the open land areas,ie parks,playgrounds, but we don’t own the mineral rights, what can we do on that area? I’ve been told that we can put things there but only on top of the land, that we can’t build into the ground, like to put a swimming pool in or things like that. Can you maybe give me some better info into this so i can understand it once and for all. Said community is in the Houston,Texas area.
    Thanks in advance

    • buildingadvisor says:

      In parts of the country where mining and oil and gas drilling are common, many people are surprised to learn that that someone else owns the rights to the minerals below their land. In most states, mineral rights to a parcel of land can be “severed” from the surface rights and sold to others, who may in turn sell those rights again or lease them to mining or drilling companies. This is common in states with active mining and drilling industries, including Alaska, Colorado, the Dakotas, Louisiana, Pennsylvania, Montana, Oklahoma, New Mexico, and Texas, among others but can happen in nearly all states. And in most states, sellers are not required to disclose this fact, although it usually is discovered during the title search (another good reason to carry title insurance).

      Not all mineral rights are the same. They can include all minerals at all depths for all time, or be limited in various ways. For example, the rights may be for certain minerals only, at certain strata or depths, and for limited time periods. The deed may place other restrictions on the exercise of the mineral rights. However, in the absence of specific restrictions, the owner of the mineral rights has a broad entitlement to come in at any time to search for and extract the minerals that they own. In general the courts have found that the mineral rights take priority over the surface rights, providing that the mineral rights owners act reasonably.

      Mineral rights are complex and laws differ, to some extent, from state to state. For example, in some states, the rights revert to the original if they are not exercised after a fixed number of years. Other states require that owners of mineral rights compensate surface owners for damages or loss of land value, or post bonds to protect the surface owners from uncompensated damages.

      The owner of the mineral rights is allowed “reasonable” access to search for and extract the oil, gas, or mineral in question, including building roads and other infrastructure. Some states define “reasonable use” more broadly than others. Under state law, rights owners may have to notify the surface owner before starting operations, maintain a minimum distance from homes and other structures, and compensate the surface owner for losses or damage to the property or agricultural uses.

      Along the same lines, some states require that the mineral rights holder negotiate an agreement with the surface owner over access, compensation, and other terms. Even without this requirement, mineral rights owners often negotiate terms with surface owners in the interest of keeping the peace. However, in most states, if negotiations break down, mineral rights owners can assert their right to explore, drill, and dig. Courts generally support the principle that mineral rights take priority over surface rights.

      That said, the owner of the surface rights generally has the right to use and develop the land as they wish – with the knowledge than an oil derrick may appear in their backyard someday. So I don’t see why you couldn’t proceed with your plans to build a swimming pool or other recreational facilities.

      However, these are complex legal questions (and I’m not a lawyer). So you would well advised to consult with a lawyer with expertise in mineral rights before spending money on a swimming pool and clubhouse.

      In Texas, mineral rights owners enjoy very strong legal protections. For example, unless restricted by the lease agreement, a drilling or mining company can do whatever is necessary to find and extract minerals and is not responsible for damage to the surface, aquifer, agriculture, or livestock. You can learn more in this report from the Texas A&M Real Estate Center.

      Best of luck with your project!

  2. Can Owner Block Easement?

    Hello, We are fighting for an implied easement for driveway access to our 1920 home. The only access is a driveway through a neighbor’s yard. If we get an easement approved by a judge, will the owners of the land that the easement is on be allowed to alter the driveway in any way? Specifically to trench along it for utility lines? An attorney suggested that he doesn’t think they are allowed to block the easement at any point, which would prevent them from trenching, but he wasn’t sure.

    • buildingadvisor says:

      An implied easement grants fewer rights than an “express” easement written into a deed or other legal instrument. For example, an implied easement may not pass to the new owner if the lot with the easement is sold, while an express easement goes with the title.

      An easement is a right to a defined and limited use of a piece of land, in this case, placement and use of a driveway. In general, the owner of the land is not allowed to interfere with the easement – at least not on a permanent basis – but is allowed reasonable use of the land. Most likely, they would be allowed to trench across the driveway for utility lines, as long as they promptly restored the driveway to its condition before the trenching.

      However, this is a legal question and I am not a lawyer. If your lawyer does not know the answer, it may be that there is no clear legal answer, or that it requires more research. In any event, the best approach is always to work out the issues cooperatively with your neighbor if possible, and to bring in the lawyers only as a last resort, if all else fails.

  3. Buying Land With Disputed Boundaries

    I’m looking into buying vacant land, which has water access. However, the neighbor has placed his pull trailer and a porta-potty right next to the road on land that is clearly on the land I am looking at. The neighbor is very certain that he owns the whole area and the landowner we are buying from only owns a tiny sliver between the road and his land. If we buy this lot, what are our options? The current owners never wanted to get into since they didn’t live there and the neighbor’s equipment was so close to his property line.

    • buildingadvisor says:

      Some building sites have boundary markers at the corners of the property. These might be stone, concrete, or steel pin or pipe markers. They may be buried, missing, or were never installed. If you can locate these markers, and you trust that they are accurate, and you have a site plan, you should be able to determine the lot boundaries.

      Nowadays, most towns have an online database that you can easily access to print out a site plan. You can also get a copy of site plan, subdivision “plat” map, and zoning map from the town assessor’s office or county recorder of deeds. The deed, itself, may contain written information describing the lot boundaries and measurements to fixed objects such as roads. The assessor’s office, building department, or registry of deeds may also have a copy of any surveys done in the past.

      On rural lots, however, the actual road or other fixed objects are not always where they are drawn on maps, so you would need to verify their locations. For example, an unpaved road may have preexisted the subdivision and may not line up with the road on the map.

      The only way to be 100% certain that you have accurately identified the boundaries is to hire a professional surveyor, which typically costs about $500 ($200 to $1000). You could make your offer to purchase the lot contingent on a survey being completed to your satisfaction. Perhaps the seller will split the cost with you. Read more about contingencies.

      Without a survey, you may have a difficult time getting the neighbor to move his trailer and porta-potty. Even with a survey, it may take a lawyer’s letter to get him to give up land he is convinced is his. People can get very stubborn about land claims, especially if they have violated a boundary for many years and believe they own the land in question.

      If fact, under certain conditions, a trespasser can legally claim land that they have used, unchallenged, for a number of years under the legal principle of “adverse possession.” This law may seem extremely unfair to the party who loses the land, but it is still the law in many places and dates back to English common law from the 1600s. So it’s best to clear up the boundary issue before you buy the land, or you could inherit a major headache from the previous owner.

  4. Building on Unbuildable Lot

    Hi. I have single-family house on two acres of a land. One acre is wooded and not buildable. Is it possible turn it into the buildable area and subdivide it later. Thank you

    • buildingadvisor says:

      Whether your lot is subdividable and whether it is buildable depends entirely on local zoning and subdivision regulations. These determine minimum lot sizes and under what conditions you can subdivide an existing lot.

      If you wish to subdivide and sell it later, it is best to do all the legal work now rather than wait. In general, zoning regulations only get more restrictive over time. They almost never get more lenient.

      Often an existing lot is governed by older, less-restrictive zoning regulations under “grandfather” rules in local zoning laws.

      The first step is to schedule a meeting with the local zoning official – at the town or county level, whichever has jurisdiction. Tell them what you wish to do and they will tell you the required procedure. If a special permit or variance is required, ask what the procedure is and what is the likelihood that it will be granted.

      If a variance is required, you probably want to speak with a real estate lawyer, since the process is usually cumbersome. A special permit is easier to obtain than a variance, but still requires jumping through some hoops. A lawyer can tell you what it would cost to have them file the application, and what is your chance of success. Also if you are told that the lot is not subdividable, they may have a work-around strategy. For example, you may be able to build a second home on the property if it is an “affordable” dwelling unit. Best of luck!

  5. Lot Reclassified as Wetlands

    We live on a 70-acre wildlife lake in MN. The local watershed district wants to reclassify our lake as a wetland so they do not have to maintain it. How will this affect our 1 + acres of land?

    • buildingadvisor says:

      Land designated as wetlands by state or federal agencies have restricted uses. The specific restrictions depend on the type of wetland and the laws in your area. In general, you need a special permit for an construction area that is within the boundaries of the designated wetlands or impacts it. That would include building a home, addition, or even a deck, as well as agricultural and recreational uses. The buffer zone around the wetlands may also have restricted uses. You would need to consult with your local Dept. of Environmental Quality (or similar) to determine what exactly you can and can’t do in the designated wetlands area.

      Getting a permit to build in a protected wetlands is difficult, but not impossible if you agree to “mitigate” the impact by creating additional wetland areas. If the wetlands adjoins or is close to navigable waterway, then you may need additional permits from the Army Corp of Engineers.

      On larger lots, it is sometimes feasible to build far enough away from the wetlands that no special permit is required. Given that your house already exists, you may be granted certain right under “grandfathering” statutes. You would need to check with the local government agency that has jurisdiction – or hire a wetlands consultant if there is a lot at stake.

      Your land value could be affected as well since restricted usage sometime translates to lower values. On the other hand, the lake was already wet and unbuildable, so the impact may be minimal.

  6. Is Title Insurance Needed?

    I’m looking into buying a piece of land from a developer who went through the process of platting the land himself. I have all the paperwork filed with the county and am wondering if I actually need any Title work done on the property. I believe that the land has to be clear of any and all encroachments, easements, etc. when it is platted and the developer would have to disclose anything that he knows about to me as well. Is there any reason for me to get Title insurance or have a Title settlement done?

    • buildingadvisor says:

      Regardless of what was done before, the bank will require Lender’s Title Insurance, and a title search, if you financing the land or home construction.

      Owner’s Title Insurance, on the other hand, is optional. This protects you rather than the bank in the event of a title problem for as long as you own the home.

      The argument for purchasing this insurance is that there can always be some expensive title problem lurking out there that can bite you in the future when you go to sell. How likely is that? Real estate lawyers have told me that they encounter title problems all the time. So it’s really up to you to decide whether a one-time fee of a few hundred bucks is worth the protection it provides against future problems. In general, this must be purchased at closing.

      It’s bit of a racket as it is very difficult to buy title insurance directly from an insurance company. Mostly it is purchased through the lawyer you use to close on the property and they get their cut, driving up the cost to you. Despite these issues, I have always bought Owner’s title insurance, (but have never needed it so far).

      Read more on Clear Title.

  7. Amie Kreidler says:

    Who Owns Land Adjacent to Road?

    Is it true the state owns the property 6 feet from the road into your property line? I live off a major highway and the city is saying they own the property 6 feet from the highway into my property and can do what they want with it.

    • buildingadvisor says:

      The short answer is that, no. No municipal or state government or anyone else can own land that is deeded to you. However, they can certainly hold a public easement or right-of-way that gives them certain defined rights to use that land in specific ways: for example, for sidewalks, utility lines, or city maintenance. In general, the holder of an easement can take whatever reasonable steps are needed to exercise the right granted in the easement. As the owner of the land, you can also use this land as you like, as long as you do not interfere with their ability to exercise their easement. For example, you can’t build a shed blocking a right-of-way.

      An easement should be a matter of public record and is usually recorded in the deed, subdivision plat, or surveyed plot plan. You can obtain a copy of your deed from your county clerk, or copies of the plat map or plot plan from the city/county zoning department. Utility companies can provide information on any easement rights they might have on your property.

      Another option is to hire a real estate lawyer, title searcher, or title insurance company to conduct a search for all property easements that affect your property.

  8. Shelley says:

    Can County Divert Water Across My Land?

    The county wants to fix a road that floods. They want to divert the water and tile under the road to my yard and tile across my yard. This will also dry out a natural stream that I love that flows along the side and back of my yard. The county says that the road floods because the because of damage to the natural stream that runs across my property caused by the previous owner’s cows. I told the town they could dig out and restore the natural flow of water, but they say they can’t. Do I have to let them go across my property? Also the neighbor across from my property dug a huge pond that now is overflowing to a drainage ditch and she is blaming us for the water not flowing across our field. Please help I’m very worried. Thank you!

    • buildingadvisor says:

      You raise a lot of complicated issues in your email. These are legal questions and I am not a lawyer, but I can provide some general information.

      First off is whether the town has the right to dig a trench across your yard and place drain tile there. Unless the town has an easement across your property, they generally cannot dig there or do other work on your property without getting your permission – unless they go to court and claim “eminent domain.” In that case, they could gain the right to work across your property but would have to compensate you fairly for any loss of value and fix any damage to the landscaping. You could also grant or sell the town an easement across your property, but you would be in a position to negotiate for what you want – in this case, the preservation of your stream.

      If the stream you describe is legally considered a “natural watercourse” (as opposed to manmade), then you may have a stronger legal case to prevent the town or a private party from doing any work that alters the volume or course of the stream. If the town claims otherwise, your only resort would be to hire a good real estate lawyer fight the town.

      You second issue is a little more straightforward. In general, a neighbor is legally responsible for any action they take that changes the water flow onto your land and causes damage. The general principle is stated here from findlaw.com:

      “If a neighbor alters their land or property in some way, and damage is inflicted upon your land or property from surface water, then your neighbor will be liable for the damage if the alteration was unreasonable. In order to succeed in a lawsuit against a neighbor, you will need proof showing that your neighbor did something to his land or property, that the alteration was unreasonable, and that the alteration changed the natural flow of water onto your property.”

      That’s the good news. The bad news is that the only way to enforce the law is by an expensive lawsuit.

      My advice: Hire a good real estate lawyer for a couple of hours (first get an estimate of his costs) to review your situation and clarify what your legal rights are. Then negotiate in good faith with the town and neighbor to find a mutually agreeable solution. It’s always much quicker and cheaper, and much less stressful, to find a compromise than to sue anyone. A lawyer can help with the negotiations — for example, by writing a letter to the town and neighbor — or you can do it yourself if you are comfortable with that sort of thing.

      Best of luck in finding a workable solution!

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