In This Article
Types of Regulations
Easements & Rights of Way
Protective Covenants, HOAs
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 an “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!).
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!” These are legally referred to as CC&Rs – covenants, conditions, and restrictions and carry a lot of legal weight. So read them closely before proceeding.
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.
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, or 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 with protected wetlands on your site, however, you may still be able to build on a dry portion of the land. You will need a large enough area for construction with the required clearances to the wetland boundaries. You will also need a large enough dry area for a septic system, if required.
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. However, this is legally complex and mainly used by developers with the help of engineers and lawyers.
So proceed with extreme caution before buying or building on or near wetlands. Beyond the regulatory hurdles, you face the prospect of owning a house with ongoing drainage and moisture problems.
Check your survey, local planning office, or county courthouse to see if any or all of your land lies in FEMA-designated flood zone, commonly referred to as a “flood plain”. High-risk flood zones 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 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 break off and float away in a flood and leave the building above unharmed. The lower portions of the building are generally not approved for living space or mechanical/electrical systems. Special septic system requirement may also apply. The regulations can get pretty complex.
If you are in a high-risk flood zone, most lenders will require you to purchase federal flood insurance, which is limited to $250,000 and often does not cover the full cost of rebuilding.You may also pay a lot more for certain types of coverage, such as mold damage, and find it more difficult to obtain a construction loan. Add to that the real risk of a flood and you may want to think very carefully about tempting fate in this way.
Whether or not you believe in global warming, many areas of the country are getting more rain than expected by historical norms, and flood hazard maps are being revised to reflect these changes. However, the revision of flood zone maps is a bureaucratic process that may lag behind climate trends (and sometimes results in areas being mis-classified). FEMA does the best it can with limited staffing and funding. And, like it or not, their data is often the best thing available, and is relied on by lenders, insurers, and the real estate market, so it is not something to take lightly. Read more on Flood Insurance and Flood Plain Mapping.
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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preston brown says
Title Insurance on Contaminated Land
Can I get title insurance if there is a known residential underground storage tank that has leaked and has not been remediated?
Most likely, you can get title insurance, since standard policies exclude any claims based on environmental risks or regulations.
A few points to consider:
– Title insurance protects buyers and lenders against claims against a title such as liens, back taxes, inheritance conflicts, or other legal problems that occurred before the sale and did not show up in the title search. It does not protect against future risks.
– Standard title insurance excludes any defects not shown in the public record. Typical title searches do not find liens filed by the EPA, since they do not appear on land records.
– Generally, defects in title are resolved before closing. In most cases, title with defects cannot be transferred to a new owner, so the sale of the property is postponed until the problem is solved by paying back taxes or whatever is required to resolve the defect.
Not sure if you are the buyer or seller, but keep in mind that the seller can be held liable for land contamination even if the buyer is informed of the risk and agrees to assume the risk. Cleanup costs can be excessive.
Best to check with your lawyer before proceeding.
Paula Tomasi says
Can I Build Over An Easement?
What determines if a lot is buildable? Should a homeowner or builder consider easements when deciding what size house can be placed on a lot?
Easements can certainly interfere with your building plans. An easement gives a person or entity the right to use a portion of your land for a specific purpose. In general, you cannot build within 50 ft. of a public easement held by a government entity. Also, you cannot block a right-of-way – a type of easement – whether it is public or private.
While you may have the legal right to build over other types of easements, it is never wise as your building may interfere with the easement holder’s usage or access to the land. For example, if the utility company needs to tear down your addition or destroy your swimming pool to repair their underground pipes, you could get the bill for both the demolition and repair.
A lot can be “unbuildable” for a variety of reasons. The most common reason is a zoning restriction – for example, the lot is too small or lacks road frontage. In some cases, a lot is unbuildable under current zoning laws but is grandfathered under the zoning laws in place at the time the lot was subdivided. Owner can apply for a variance that allows them to build on a “nonconforming” lot, but there is no guarantee that the variance will be granted.
Other lots are unbuildable because of wetlands, toxic waste, a failed perc test, or other environmental regulations.
These are complex areas of law, so you would be wise to get the opinion of a local real estate lawyer before proceeding.
Linda Smith says
How Do I Determine If a Lot is Buildable?
I’m under contract for 5 acre vacant land that is not on wetlands. Zoning has stated the property is buildable . However, what type of test should I get done to make this land is buildable? The property is in the state of Florida. Meaning due to endangered species etc?
There is no single “test” to determine whether a lot is buildable or not. You were smart to start with zoning, because that’s the most likely body of regulations that will limit how you can use the land. Zoning rarely declares a lot completely unbuildable, buy may severely limit the type, size, and uses of structures built on the land.
If town water and sewer are not available, then next on the list is the perc test to determine if you can install a septic system, and well research to determine the likelihood of getting a sufficient yield of good quality water at a reasonable cost. A valid perc test may be on file with the local health department or whoever oversees septic system regulations in your area.
Next I would examine the deed for any restrictions, get copies of any protective covenants, and get copies of any surveys or other land records on file. Keep an eye out for easements, rights-of-way. Also meet with local zoning and building inspectors to ask about any special issues that you should be aware of. Flood zones, regulated wetlands, and environmentally sensitive areas can severely restrict your ability to build.
Most of this information would be uncovered in a full survey of the property. While most people do not want to spend $1,000 or more ahead of purchasing, it may be justified if you suspect potential problems.
Beyond those common issues are an almost endless of issues that can drive up the cost and complexity of developing a piece of land or – in rare cases – render it prohibitively expensive to build on. These can come out of left field. You mentioned endangered species, which may be a common issue in your area. Other possible issues include buried toxic waste, or other environmental issues. These can make development of the lot more expensive, but usually still possible.
Most building lots in a developed area are buildable, but they may not be suitable for your specific plans. For example, house size, coverage, number of bedrooms, and uses (such as an in-home business) may be limited by zoning, protective covenants, perc test results, etc.
However the last lot in built-out subdivision may have a fatal flaw that has kept it from being developed. So ask a lot of questions. In some cases, a problem lot can be built on but the development costs and regulatory hurdles are extremely high. I’ve seem more than one “unbuildable” lot fully developed by an individual with the knowledge, persistence, money (and maybe a few connections) to make it happen.
You can read more on questions to ask about site development and who to ask. If anything remains questionable after your initial research, add contingencies to your offer so your earnest money will be refunded if the lot does not meet your conditions. A lawyer or licensed real estate agent can help you structure your offer so that your money is legal protected.
Joe M says
Can I Place Deer Stands on Unbuildable Lot?
I am looking at buying some hunting land in Wisconsin. It is mostly swampy area and is deemed unbuildable. This is fine as I do not plan to put a house on it. My question comes with if I can put some enclosed deer stands out there or does that also fall within the unbuildable zoning? Thanks for any help.
There are many reasons that land can be classified as unbuildable. The most common issues are zoning ordinances and environmental regulations governing such issues as lot size, access, wetlands, and septic systems. For example, the lot may be too small, too wet, or unable to pass a perc test required for installation of a septic system.
In most cases an “unbuildable” lot cannot be used for a permanent residential or commercial building, but can be used for other purposes such as recreation, storage, or other uses.
My guess is that your deer stands would not violate and building or zoning regulations in your area, but it’s always a good idea to check this out with the authorities before making an offer – or at least add a contingency to your offer that gives you the right to back out of the deal, and get your earnest money refunded, if your written conditions do not pan out.
I’d suggest meeting with the town’s building and zoning departments to find out exactly why the lot is deemed “unbuildable” and to discuss your planned uses. If possible, get their opinion in writing – which carries a lot more weight than verbal communications if there is ever a question down the road about who said what.
Can An Abutter Stop A Development
A developer is proposing to construct on land that is a Coastal Bank with a ton of setbacks and legal restrictions. If the Conservation Commission grants the project to move forward and a ten foot height retaining wall is built and the home is then constructed on the highest point of land that abuts our property and completely destroys the natural landscape around us which is why we purchased the home and brings down property value- what rights do I have that will protect my home and the surrounding land, it’s value and the negative environmental impacts that will occur if this construction is granted?
It’s always difficult when a neighbor decides to develop land in a way that interferes with your quality of life or potentially lowers your property value.
As an abutter, you have certain rights to appeal a decision by the planning board, conservation commission, or other permit-granting authority. In general, you are notified, as an abutter, of applications for zoning variances, special permits, or other building or zoning decisions that require special approval. You generally have standing to appear at any hearings, with an attorney if you like, to make your case.
Once a decision is made, you generally have the right to contest the ruling within a specified time period. You can also file a lawsuit if all else fails. In some cases, people have been successful in suing neighbors for loss of home value, or use or enjoyment of their property, but this is an uphill battle.
At any type of hearing, you will need to bring written documentation to support your position, including drawings, photos, or other relevant documents. For example, you would need to demonstrate that the project would cause erosion, harm your drinking water, or cause other tangible harm. Simply stating your objections is rarely enough to sway a planning board or similar agency. A lawyer can help you prepare this type of appeal (I am not a lawyer).
The specific rules for appealing a decision vary according to state law and may also vary between local jurisdictions. If you have other neighbors, especially abutters, who would join you in this effort, you may have better luck in persuading local officials to act. Also, if there is a risk of true environmental harm to the area, you may be able to enlist the support of local or regional environmental organizations. The more support you have, the greater your likelihood of at least getting a fair hearing.
Once a ruling has been made, however, it is not easy to get it reversed or amended. You would need to have a very compelling case of actual harm that is viewed by the court as overriding the owner’s rights to develop the property to its “best and highest use,” a legal term referring to the use of the land that would bring the highest value to the owner.
I have personally been on both sides of this type of dispute and, in neither case, did the town budge on their original decision. I’ve also seen instances where people were required to alter their properties after construction. If there is a clear violation of building codes, zoning laws or other important regulations, then you have a much stronger case.
Best of luck in your efforts!
Ruth Penterman says
Can Neighbor Drive on Right-of-Way over Wetlands?
On my property I have a farm path through wetlands that has been there for over 50 years. The owner of another lot is demanding that they be allowed to move the access to their land and be allowed to drive through that farm path. Their current right of way, on property that I own, now goes through wetlands. They own 25 acres of all wetland, unbuildable property, that they now want to drive to instead of walking. Do they have the right to change the right-of-way and to drive over a footpath on wetlands?
As I understand it from your description, the neighbor has a legal right-of-way to cross your land, through wetlands, on foot. But now this person is demanding that they be allowed to drive over that same right-of-way.
A right-of-way is a type if easement, which gives one person the legal right to use another’s land in a certain way – in this case the right to travel across another’s land. It usually specifies a specific path across the land and may be restricted to certain types of traffic such as pedestrians. It may also be limited in time.
An easement may appear or be noted on the property deed or a survey of the property. To be valid and enforceable in most states. it must be legally recorded with the land jurisdiction or registry of deeds.
In some cases, rights-of-way are verbal, implied (by 20 years of unchallenged use), or otherwise unrecorded. They may result from land uses prior to a lot being subdivided. In these cases, laws vary from state to state and it may require a lawyers help resolve any disputes.
The fact that the right-of-way crosses wetlands adds another wrinkle. If this is a legally designated wetlands, its use will be restricted in certain ways, such as the building of roads or driveways. Wetlands regulations can get pretty complicated.
You can often get pretty good information from the town’s building and zoning department for free, but may need to bring in a surveyor or real estate lawyer to resolve more complex issues.
As I understand it from your description, the neighbor has a legal right-of-way to cross your land, through wetlands, on foot. But now this person is demanding that they be allowed to more that right-of-way and drive rather than walk.
On the face of it, they are on shaky (or soggy) ground, unless they have a written right-of-way allowing them to drive over your current footpath.
A right-of-way is a type of easement, which gives one person the legal right to use another’s land in a limited way as specified in the easement – in this case the right to travel across another’s land. The easement usually denotes a specific path across the land and may be restricted to certain types of traffic such as pedestrians. It may either time-limited or permanent.
An easement may appear on the property deed or a survey of the property, or be noted on one of these documents. To be valid and enforceable in most states, the easement must be legally recorded with the registry of deeds or the local jurisdiction.
In some cases, rights-of-way are verbal, implied (by 20 years of unchallenged use), or otherwise unrecorded or informal. They may also result from longstanding patterns of use prior to a lot being subdivided. In these cases, laws vary from state to state and it may require a lawyer’s help resolve any disputes.
The fact that the right-of-way crosses wetlands adds another wrinkle. If this is a legally designated wetlands, its use will be restricted in certain ways, such as the building of roads or driveways. Wetlands regulations can get pretty complicated.
You can often get pretty good information from the town’s building and zoning department for free, but may need to bring in a surveyor or real estate lawyer to resolve more complex issues.
Can I Fill In Wetlands?
Please send me your answer to my email address below. I am contemplating purchasing land which shows 0.83 acres of ‘potential wetland’ in Needville area of Texas (77461 zip code). It is relatively small (to think of) compared to about 5 acres of land it goes with. However, the wetland’s location is more along the frontage of the property. I was wondering what should I first investigate, then do what next. To allow its existence in ‘as left’ condition would permit my ingress road to be sneaky and winding down a path, possibly not even possible to create. My crude thinking is contact the Rulers – like county engineers and then with their blessing fill the hole. Please advise.
Wetlands regulations vary state by state, and there may be town or county regulations as well. So I would proceed with caution.
The best-case scenario is that you have enough high and dry land to build your road, home, and septic system, and can leave the “potential wetlands” as is.
Worst case is that you would need state and/or county permission to fill some or all of the wetlands to complete your project – and permission might be denied or you would need to spend money on permits, engineering, and additional site work.
I have no idea whether they would grand permission to fill some or all of the low area. In some cases, developers required to create new wetlands areas to compensate for the area filled.
As you suggest, the best place to start you research is with the local building department, which might put you in touch with the Dept. of Environmental Quality (DEQ) or its equivalent in Texas. It may be that the land in question is not an official regulated wetland or flood zone and you can add fill as needed.
Other possible concerns are the presence mosquitoes and other insects that thrive in wet areas. And insurance rates can be higher in FEMA floor zones. Also, you may have a high water table on other parts of the site that appear high and dry, affecting septic system and foundation design. You might want to make your bid contingent on the review of a geotechnical, soils, or civil engineer as part of your inspection process.
You can find additional information on Texas regulations re:
Best of luck with your new home!
Wow! Quick response appreciated!
Have asked the questions to the right people I suppose. Potential wetland like this is not shown on FEMA map of the area, and the entire area is in Area of minimum flood zone X as such.
Lonny Hagen says
Setback From Barn to Conservation Easement?
I just purchased a farmhouse and 6+ acres. The previous owner put the rest of the 80 acres into conservation easement, which is not completed yet..but the stakes and markers are all in place. It is a private conservation easement. However, the way it is stakeds out, the boundary lines come within 20 feet of my barn and another of my buildings…which will make the weed line a little too close for comfort for me if the easement was to catch on fire. Is there a minimum distance that is supposed to be in place when putting land into conservation easement with regards to another persons building sites?
Conservation easements are created to protect natural areas or historic features from specific types of development such as residential subdivisions or road construction. They can be created for a wide variety of objectives such as water quality, wildlife habitat, or scenic views. What types of activity are restricted depend on the specific language of the easement. For example, maybe they plan to keep this area in fields and will cut it periodically. The easement is typically held by a land trust or the local municipality, which is responsible for maintaining the land and enforcing the terms of the easement.
An easement would typically be designed so it does not interfere with existing structures or create a setback violation. Setback requirements vary a lot depending on local zoning regulations, the zoning district, type of building, and whether the setback is to the front, back, or side-yard boundary.
In suburban areas with larger lot sizes, side-yard and rear-yard setbacks typically range from 15 to 30 feet. Setbacks are typically less for “accessory” buildings such as barns, garages, and outbuildings.
I would suggest checking with your town’s zoning department about the setback requirements for your barn and other buildings. If the setback is less than required by zoning, you would have a strong case to request an adjustment to the boundary. Even if the setback complies with local regulations, you can still meet with the landowner to express your concerns. Maybe they would be willing to adjust the boundary or agree to keep the area around the barn trimmed – or allow you to trim it yourself.
Read more about Setbacks & Zoning
Can HOA Demand Monthly Payments For Non-Potable Water?
We have an HOA and Covenants saying we cannot drill a water well but have to use current water coop. The water they provide is no longer potable so we drilled a water well. Now they say we have to pay them monthly anyway. We live in Texas. Do we have to pay them?
This sounds like a sticky legal question, so it’s best to check a lawyer (I’m not one).
However, I can tell you that, in general, courts tend to support most protective covenants when they are contested, unless they conflict with local or state laws that override the covenants. For example, if you agreed to not hang out laundry and not paint your house bright green, then the HOA can legally stop you from doing so. The covenants are enforced by the HOA through their elected officers.
The question is complicated by the fact that you are being asked to pay for a service that is no longer provided, that is, supplying potable water. Can an HOA reasonably expect you to do that? What is the actual language of this provision? Also, that are the other HOA members doing for potable water? This sounds like a problem that needs to be addressed by the HOA if which you are a member.
No easy answers, but finding a good real-estate lawyer well-acquainted with HOAs would be a good place to start.
Best of luck!
Can I Build On Deeded Drain Field No Longer Needed?
If the county has designated a piece of property as a “deeded drain field” can it be used for any other purpose? If the drain field is split off from the piece of property on which a house is to be built, and the drain field is not needed,, can a structure be built on it. Also, being in a private association, can that association prevent such construction? We are located in the State of Michigan, Antrim County specifically.
I’m not sure from your question as whether the “deeded drain field” was created by an easement or is simply space designated on the plot plan for the future leach field. Many municipalities require that your plot plan designate the house footprint, primary leach field and replacement field. In that case you would not be able to build on the drain-field area, or split it off as a separate lot unless you were able to get another area approved for a leach field. Of course, the new lot would need an approved septic plan as well.
If it’s an easement, then another party holds the legal right to place a drain field on a section of your property. If that is the case, then you cannot place any permanent structure on the easement area or otherwise interfere with the rights of the easement holder to use the land as described in the easement. If you were somehow able to subdivide the land, the easement would typically “run with the land.”
If the leach field is no longer needed, because, for example, the houses to be built will be connected to municipal sewer systems, then you can probably get the deed restriction removed with some effort. If structured as an easement, then you would need to get the easement terminated by mutual agreement with the easement holder, or you can offer to purchase the easement and then terminate it. Some easements automatically expire based on time or specific events. You need to get ahold of the easement to understand its specific terms. In most cases, easements are recorded at the city or county registry of deeds and are a matter of public record.
I’m not sure what role the association will play in all this, but home owner associations (HOAs) typically regulate subdivision of lots and similar activities and could certainly seek to block your plans if they violate the association’s CC&Rs (covenants, conditions, and restrictions).
There are a lot of moving parts here. I strongly suggest that you consult with a local real estate lawyer before moving ahead with your plans (I am not a lawyer).
Read more about How Septic Systems Work
Tina Matson says
Can City Install Sewer Line Without Easement?
If I have a commercial property that doesn’t have an easement on it, can the city come in and put an above-ground 4’x4′ sewer line with a manhole cover on my property without permission? Now 5 years later it is causing my yard to cave in and sink into the river behind me. Repairs will cost me $6000.00.
In general, a city or utility does require a property easement to run pipes, roads, or other infrastructure across your land. Cities typically negotiate a price for this type of easement with landowners, but have the legal right to take the easement by court action if no agreement can be reached.
Easements are a matter of public record and are typically recorded with the local assessor’s office or at the county registry of deeds. They also usually appear on a current survey and get picked up in a title search.
When a utility or city exercises its rights under the easement, they are supposed to restore the land to its former condition (assuming the landowner has not obstructed the easement with permanent structures). In practice, the owner may need to be a squeaky wheel to get everything fully restored to its proper condition.
With damage that occurs five years later, it could be more difficult to prove that the city is at fault. If they never had the legal right to do the work in the first place, that complicates things.
To get a better understanding of your legal rights and the most effective way to approach the city, you may wish to speak with a lawyer (which I am not). Best of luck!
What Type of Deed Restrictions are Legal?
Hello. A person I know was able to buy a lot in a subdivision. She also bought the lot next to her to prevent a person buying it from the developer and building a one story house. She is weird and is anti-one story. She is now trying to sell the lot. She had told people that when she sells it, she will have in a contract that they cannot build a one story house on the lot. Sounds so wrong
Is that legal? We live in pennsylvania
In general, an owner of land can place restrictions on a deed as long they do not violate the law. For example, you cannot restrict ownership to one race or religion, which has been found unconstitutional. But age restrictions are common in “over 50” communities. Deed restrictions are often put in place by developers as “protective covenants”, but can also be imposed by the owner of an individual lot. As long as the restriction is properly recorded with the county registry of deeds, it would be enforceable, although procedures and laws vary somewhat from state to state.
While a prohibition against one-story homes is unusual, I don’t see any reason why it would not be enforceable. After all, developers often dictate minimum house sizes, exterior materials and colors, types of plantings, use of fences, and a wide variety of other factors. They can even limit holiday decorations, window treatments, type and number of pets, and just about anything else that does not specifically violate housing laws.
In general, deed restrictions are permanent and “run with the land.” They are generally enforceable by the developer, home owners’ association, or – in this case – the individual owner who placed the restriction on the deed – although they would probably need to sue to enforce the restriction.
Homeowners may view such restrictions as onerous and obnoxious or as a way to protect their property values. So, although you may find the two-story house requirement weird, it is the owner’s right to do so. After all, they paid a high price to have a two-story house next door
Can I Sell Lot if Covenants Require Building Within a Year?
Hi. This is an excellent article and could not be more timely. I recently acquired a third acre home-building lot in a subdivision in a small town. It clears all of the problems you mention here except one: The covenants state that I must have a house built to the required specs within one year. I got the building permit with the city in May of 2017. I have the recorded deed in my strong box at home.
My question is what is to really prevent me from just selling it now? If I sold it, could the county block the recording of the deed for the new owner if they did not know about the covenants? The land is ready to go, graded, staked, utilities… just waiting for a contractor.
These are legal questions and I am not a lawyer. However, in general, a “covenant” in real estate refers to a rule governing the use of land, typically created by the original developer and recorded on the deed, or between individuals in the bylaws of a home owner’s association (HOA) or similar body. These are either “restrictive” covenants that prohibit owners from, say, raising chickens or painting their house pink, or “affirmative” covenants which obligate owners to pay dues, or in your case, build within a certain timeframe.
Covenants pass with the land indefinitely unless there is an expiration date, or until they are consistently violated to the extent that they lose the power of enforcement.
Covenants are essentially private agreements like contracts. They are legally enforceable by the original developer, if still involved, by the HOA, or by neighbors by the same rules. For the most part, covenants are enforced by lawsuits (or threat of a lawsuit), although some states and towns have laws that allow HOAs to impose fines or place liens on properties under some circumstances.
How the developer or HOA would react to your reselling the property is hard to say. I also don’t know what legal recourse they might have to block you. These are legal questions, governed largely by state law.
Since covenants are not government regulations, I don’t think the county could refuse to record the deed if you sell. I’m a little confused by your question about the new owner “not knowing about the covenants.” If you withhold this information, you may be in violation of real estate disclosure laws. Also, the new owner might be interested in your house plans and the permit may be transferrable for a small fee.
I would strongly recommend speaking with an experience real estate lawyer to explore your options. If you wish to stay and build, but need more time, I would think that negotiating with the current developer or HOA might be the easiest path..
Can I Have Utility Poles Moved?
First, I want to thank you for the insightful information that you have provided on this website. I am in the process of buying 2.25 acres of undeveloped land. It is a subdivided portion from “family” owned land that including sugar cane fields. Before the land was subdivided, three electrical utility poles were placed along the sugarcane fields. When subdivided, the land that I am buying contains all three utility poles going down the middle of the 2.25 acres (front to back). These poles have overhead wires streaming across the property from the poles to the neighbor’s house and other sources for their utilities’ access. I would greatly appreciate any advice that you can give me regarding: 1) can I move this poles, 2) what options do I have, 3) possible estimated costs involved, 4) potential issues with the neighbors etc. Thank you in advance for your time.
In general, a utility company will be willing to move poles if they have a utility easement (or you are willing to grant them an easement) for the new location you have in mind. Also the new location of the poles must not force them to run lines over land where they do not have an easement.
The utility company will have records of existing utility easements in the area. Easements also typically appear on a survey of the property and should also be recorded at the county registry of deeds or city hall. A clerk there can help you locate the relevant documents.
Costs vary a great deal, but utilities often charge in the range of $1,000 to $5,000 per pole for relocation. If the poles and wires are old and in need of replacement anyway, you may get the work done for a reduced rate, or for free if you are lucky. You should also ask about the option of burying the cables underground, which is a growing trend in many areas.
You can read more about easements at this link.
Best of luck with your construction project!
Victor Smith says
Remodeling Permit Denied for Defective Title
Trying to get solar panels and new windows installed. Contractor applied for the permit but it is being upheld by the county because there is no subdivision plat.
Original property was 10 acres located within a subdivision. Eventually it would be split up into 3 tracts. The first split(2.5 acres) was to the “old mans” son in 2001. The house built that year as well. The 2nd split came later…I think 2004. The son sold it to a guy which then sold it to me in 2012.
So the title company apparently filed the survey with the county by metes and bounds. The county is saying that this is wrong and in this case my property is “illegal”. From what I can gather from Google, the property should have never been sold to me like this.
The county has not been helpful and never returns my calls. I am thinking about contacting the title co. but I have a feeling they will shove it back into my face. Do you guys know anything about this kind of thing? Who is the responsible party to get this fixed?? The title co. or the previous owner??
It wouldn’t be a big deal except the windows and solar panels are financed. I have been paying on them for 6 months now. Finally at the goal line to getting them installed, but the county is intercepting the pass.
This is a legal question and I am not a lawyer. However, in general, a defect in title can hold up permitting a building project like your, as well as any future sale of the property. It sounds like your issue may stem from a problem with the deed, such as inadequate legal description of the property or improper recording. Some minor errors in a deed are considered harmless and can be ignored, and others can cause significant problems with the legal title to (ownership) your property.
Curing defects in a title can range from simple and cheap to complex and costly. In most cases, title problems are identified in the title search before closing, but some errors fall through the cracks. For that reason, all mortgages require title insurance to protect the bank (but not the owner) against losses due to future title problems. A second type of title insurance, called buyer’s title insurance protects the owner against similar losses.
If you have buyer’s title insurance, the title company should cover the legal costs of solving the problem. Otherwise, I would contact the lawyer who represented you at the closing and the title company that handled the sale. The title company may acknowledges the error and take action to fix it. Otherwise, you will need to hire this or another lawyer to get the title cleared.
Who is responsible is a theoretical question – potentially the seller or their agent if they knew about the defect in title (and you can prove that) and failed to disclose that, possibly the title company, possibly the local government. The more important question is how to get the problem solved with the minimum cost and hassle. Like most things in real estate, the overriding principle is caveat emptor – let the buyer beware.
If you don’t fix the title problem now, it may come back to haunt you when you go to sell the property in the future. You can also try working directly with the bureaucrats at the county to resolve your problems, but I’m not optimistic about that approach.
Best of luck in clearing up any title problems as quickly and cheaply as possible!
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
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!
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.
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.
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.
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.
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?
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.
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?
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.
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.
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.
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!
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!
Neighbor’s Garage Half on My Lot
I recently purchased a lot from a tax auction in Washington state. Half the lot is cover by a two-car garage, which is attached to a house on an adjacent property that has been foreclosed on. What can I do about the garage that is on my lot?
In general, you have the right to use and work on your portion of an attached building as you see fit, assuming it complies with zoning and any other regulations that may apply. You generally do not need your neighbor’s consent to make changes unless you are working on a shared structural wall or other structural element. However, it’s usually a good idea to let the neighbor know what you are planning to do to help preserve the peace and enlist their cooperation.
If you share a structural wall, and are doing work on that shared wall, or are doing work that may structurally affect the adjacent structure, then you will need to get written permission to proceed with your plan. The fact that the attached building is in foreclosure should not be an issue, although it may be a bank or other financial institution that you would be contacting for consent, if required.
Aside from the neighbor issue, your project will need to comply with all the usual regulations and deed restrictions including local zoning, any easements, HOA restrictions, or other written agreements between the adjacent property owners that may restrict what you can legally do with your property. For example, zoning may restrict uses of the garage to residential uses. An easement may allow the neighbors to cross your property to access theirs.
It may take a little research to find out what you can and can’t do. I’d start first by getting feedback from the local building and zoning departments about your tentative plans. You can learn a lot quickly without spending any money and avoid costly mistakes. Also, these people appreciate being consulted early in a project and are more likely to be cooperative later on. You may also want to speak with a real estate lawyer to conduct a title search before investing a lot of money in the property.
Virginia Vajdos says
Neighbor’s Plants Threaten Shared Sewer Line
I am at the top of a shared sewer line with two neighbors below me. My sewer company suggested that I take pictures of the trees and shrubs planted within 1-6 feet as the roots will grow into an old line of clay pipe segments and short plastic segments.
Since I use this sewer line, can I remind them to move plants to protect our shared line – and since they are not treating the line responsibly – I do not want to share in the cost of a broken line by their roots. ( My line is lined and roots cannot
get into it.
Shalyn Zamoranos says
Can We Restore Old Road Now Used For Farmland?
How about old roads that are now covered by land used for farming? How can we restore these roads? We believe that these were public roads at one time. What laws would apply?
It sounds like you wish to restore and use a road that was formerly in use but is now farmland. Roads that appear on surveys and plot plans, but are not actual roads, are either abandoned public roads or “paper roads” that were plotted but never built. The land under an abandoned road or paper road may be owned by the town or by individual landowners. In either case, owners of properties that border the road have the right to use it to access their properties.
Abandoned public roads and “paper roads” are complicated legal issues, so it’s hard to give you a simple answer. These are legal questions and I am not a lawyer. Also, I can’t tell from your email who owns this land and why you want to restore the road. In addition, laws vary in different states. However, I can provide some general information.
Paper roads are generally roadways that were recorded on subdivision plans but never built. The land might be deeded to the town or might be owned by individual lot owners who each own to the centerline of the road. The road exists only on paper as an easement or right-of-way. In general, people who own land that abuts a paper road can open the road if they need it for access or utility lines.
If the paper road has never been opened for decades, then abutting landowners can petition the town or county to “close” the road. If it is town land, then the abutters may be able to take possession of the land – each abutter now owning to the centerline of the road. However, the right-of-way still exists if an adjacent land owner has a legitimate claim to use the roadway. FYI: I happen to own a lot bounded on two side by 50-foot-wide paper roads owned by the town. I would love to take possession of half the road on one side of my property, but am not sure it’s worth the legal expense.
Abandoned public roads are a different animal. Like paper roads, the land can be owned by the town or county or can exist as an easement or right-of-way over privately owned land. If the land is owned privately and the town/county has abandoned or legally “vacated” the road, then control and use of the land generally reverts to the owners of the land. In that case, you may not be able to use it. If the land is owned by the municipality or state, it is public property governed by a different set of laws. You may be able to legally cross the land, but not build a road there.
If you own the land in question, you can certainly use it as you see fit. If the land is privately owned by others, then you may have difficulty asserting your legal right to use it. It would depend on the legal status of the easements or right-of-way and your desired use. If you need this road access your property, you may be able to legally force an easement.
Before opening or improving an abandoned or paper road, it’s certainly a good idea to talk with an experienced real estate lawyer. In addition to the legal status of the road, you need to be aware of the impact on your work on abutting properties. Any adverse effects on drainage, access, or other aspects of neighboring properties could expose you to future legal problems.
Thomas Bowman says
DEP Says My Lot Is Unbuildable Wetlands
Help. In 1997 bought two lots, each 1.02 acres. One lot had a mobile home on it. I purchased the land through a realtor. We did the flood map, title insurance, etc. Well to make a long story short, in late 2015 I wanted to put another mobile home on my lot come to find out that the Florida DEP said that 80% of the property was in wetlands. I have owned this for 18 years and never heard of wetlands on either lot and it wasn’t on the deed that I know of. What is the best way to proceed?
Flood plain status typically is picked up during a title search, as federal flood maps and insurance programs are pretty clear-cut.
The presence of protected wetlands, however, is often not shown on a deed or disclosed during a sale. While a seller is obligated to disclose that a site contains protected wetlands, they may not have known about the wetlands. It is also possible that the area was not classified as wetlands 18 years ago but is today.
Unfortunately, wetland regulations are complex and change over time. As regulations change, or there are changes to the local climate or water conditions, an area can either become a regulated wetlands or even lose that designation.
In some cases, you can build on the high and dry portion of a site or even fill a portion of the wetlands and “mitigate” the impact by creating wetlands on another part of the site. I would start by meeting with the DEP to see what options you may have for adding a mobile home, which may face fewer restrictions than a permanent structure. Read more about Wetland Regulations.
Possible Uses for 40-Acre Wetlands?
I have two forty-acre wooded sites in northwest Arkansas that have recently been determined to be wetland. What can I do with it?
If the land is officially designated as wetlands by your state’s or county’s Dept. of Environmental Quality, they you will need to speak with them about your options. In general, you cannot drain or modify regulated wetlands without special permitting. In some cases, you are allowed to drain portions of a wetland to build if you “mitigate” by adding wetlands to another portion of your site.
The presence of regulated wetlands are usually reflected on the deed or other public record, but it’s best to contact your state or county Department of Environmental Quality if you’re not sure. Legal definitions of wetlands have changed over time, so an area that was not considered wetlands in the past can be classified as wetlands today.
If only a portion of the land is wet, then you may be able to develop the high and dry sections. Also, if the land is wet, but not regulated as wetlands, then you may be able to use a combination of drainage and fill to develop sections of the land.
For example, curtain drains, culverts, swales, and subsurface drains can all be used to dry out a section of land, and fill can raise the building above a high water table. You may want to speak with a civil or geotechnical engineer about your options.
Read more about Managing Water and Building On Wet Sites.
We purchased nine acres seven years ago to build a home on. At that time it was not “wetlands” according to the county’s GIS map. We spoke to someone at the county office and asked if we would be able to build on the property and were told YES.
Now seven years later, we noticed that is classified as “wetlands” according to the County GIS map. We spoke to the county Planning & Development department and they are telling us it is now absolutely a wetlands and we cannot build on it unless we pay to have studies and then we would have to pay for mitigation, etc. — that’s IF there is even a possibility it can be built on. Why should we pay more money to find out that we can’t do anything with it or that we would have to spend thousands of dollars more to be able to possibly build (according to a county employee we spoke with).
So, my question is: We have a mortgage on the property. Should we just stop paying for it and let it foreclose? This seems to be the only alternative to being stuck paying taxes on property we may never be able to build on or sell. Why would anyone want to buy “wetlands”?
Letting the property go, taking a loss, and letting the county deal with it seems like the best bet for us. Why should we keep losing money? We have been bulldozed by the Federal and the Local Government. The Feds have their wetland boundary and the county has an extra wetland boundary that extends 50′ out from the Fed’s boundary. I am wondering if this is some scam to land grab without actually paying for the land and also having the benefit of tax revenue from land. Also, this property backs up to a State owned land.
Sorry to hear about your situation. Reclassifying land as protected wetlands does happen sometimes and often causes economic loss to the owner.
Whether you should walk away from this piece of land is a tough decision. You have to weigh how much you would lose, the impact on your credit rating, and other factors. It’s possible that the land might still have some economic value to someone and be sellable. For example, an abutter may want to buy the land as a buffer to their existing lot. A local real estate agent who handles a lot of land sales could provide some insight.
Also, if your land is classified as unbuildable, then its tax valuation (and your property taxes) should drop dramatically. Although with mortgage payments due, that is small compensation.
There is a slim chance that you could take legal action to recover some of the lost value of your land under the concept of a legal “taking” by the government – that is, when government regulation substantially reduces the value of your property. But the little I have read on this suggests that recovering money is difficult when the taking is related to environmental issues. See https://www.epa.gov/cwa-404/what-about-takings
As to what exactly you can do with this land and whether mitigation is a viable and cost-effective option, these are very complex legal questions – something a large developer could maybe tackle with consultants and lawyers, but probably not economically feasible in your case.
However, before walking away from the property, it might be worth a one-hour conversation with a lawyer or wetlands consultant to help figure out what your options are. Your situation is not unique – land does sometimes get reclassified as wetlands. Other owners have had to deal with this problem, so they may have some creative solution.
Also speak with your bank about your options before you decide to walk away. Some banks will accept the deed back to a property “in lieu of foreclosure.” You may be able to negotiate a deal that has does less harm to your credit rating than foreclosure.
What Is Frontage Minimum To Subdivide?
This article is very helpful! We’re looking to buy a house in Massachusetts that has 1.7 acres with it. According to the current owner, you can’t sell part of it because there isn’t enough frontage. He says there has to be 100 feet of frontage and the total is 175. Who do I talk to to find out if this is true? And is there any way around that? There’s more than enough land for two houses. And on the other side is land used by the power company, but the wires are pretty far still. Any chance that could somehow count? I’m just not really sure who to even ask about these things! So I’d appreciate any advice you might have!
The rules for what is a buildable lot vary from town to town. Minimum road frontage is a common restriction. In some cases subdividing an existing lot has additional rules of its own. The best place to start is to contact the building and zoning department in the town or city where the land is located. Explain your situation and they will direct you to the right person — probably a zoning official in this case. These people are usually very helpful and can explain what rules apply.
It’s possible that you could subdivide with less than the minimum frontage by getting a variance or establishing a right-of-way or easement to access the property (variances are discussed in the section on Zoning). Depending on the specifics, a variance could be easy to get — or nearly impossible. The zoning official may offer some guidance on the likelihood of the town granting you a variance. You might also want to consult a local real estate lawyer about the cost, process, and likelihood of getting a variance.
Finally, if you do make an offer, make it contingent on your ability to subdivide. Given what the owner is telling you, however, and given the anti-growth sentiment in many communities, subdividing this may be a long shot at best.
Posted on 5/24/13 for a reader who asked to remain anonymous.
SEPTIC SYSTEM ON NEIGHBOR’S LAND
I bought a house 18 years ago with the septic system located on my neighbor’s property. The neighbors’ house was later sold to new owners. I recently needed to have the septic tank pumped. The last time was 8 years ago, before the house sold. I wasn’t there when the truck came to pump it out. But holy smokes — the neighbor lady freaked out that my tank and drain field were on her property. Wouldn’t you think that the location of the septic system would have been brought up when they bought the house. Haven’t heard anything since, but it makes me nervous. — BB
Thanks for your inquiry. Boy, what a mess. I had a similar experience when I bought a piece of land which contained half of the old septic pit of the next door neighbors (right on the property line). I only discovered this when I carefully went over the plot plans several years later. Fortunately, the house sold during that time and the town made them build a new septic system on their own land. This was in Massachusetts, which has a very strict state-wide law regarding septic system design. To sell a property, it must be brought up to this code.
In your case, I’m not sure how this happened? Was your land not suitable for the leach field? Do you have an easement giving you the right to use their land for this purpose? Even without an easement, local zoning and planning laws may “grandfather” you in. Or, worse case, you could try to claim that section of land under the principal of “adverse possession.”
My advice: First talk to your building and health department about the situation — find out what they know about how this came to be. Then try to work things of amicably with your neighbor. If all else fails, talk to a real estate lawyer.
Steven Bliss, Editor (not a lawyer!)
I’ve owned this property for 18 years. The septic tank is in great shape, but the leach field is slowing down. Also there is a big grease-trap tank, but I’m not sure if it’s even hooked up. Everything was on one property before it was subdivided way back in the early 70s. The house next door was originally a converted garage or workshop to my house before the property was split. You’d think both properties would have shared the tank, but no. They have their own small, home-made tank and leach field less than ten feet away. You’d have to ask why would they have bothered if mine was on their property and so accessible. I’m praying it’s grandfathered in or it’s going to be a costly kick in the ……..!
Nowadays, in most places, you could not subdivide a lot without zoning approval, and the septic issue would have needed to be dealt with one way or another, depending on the local rules. However, what happened in the past, especially if you are in a rural area, is anyone’s guess. If either you or your neighbor decided to sell, a title search would attempt to figure this out before issuing title insurance (or not, if a cloud on the title was unresolved). I’m surprised your neighbor (or their lawyer) did not discover this when they bought the property. It’s certainly possible that it is not recorded on any plot plan or deed, so it didn’t show up in a title search.
In the best case, an easement is documented in writing and recorded with the deed, although this is not always the case. Easements can also exist by private agreement between two parties (preferably written), or can exist by virtue of uncontested usage over a period of time (similar to the law of “adverse possession,” which creates a legal claim on another’s property because they have used it for many years without anyone complaining). You may have a legal right to keep using the septic system because you have done so for so long.
Most likely this could not be untangled without lawyering up, which no one wants to do for obvious reasons. However, if you can’t work things out by talking to you neighbor, at some point a quick review by a good real estate lawyer may be your best bet.
Best of luck,
Steven Bliss, Editor (Not a lawyer)
Thanks for your input, Steve. I’m going to let it ride until I get a letter.