My good friend Kris and his lovely fiancé Dena are in the process of buying a house. Kris has helped me work on my motorcycles and trucks more times than I can count. He’s one of those good guys you hear about who will help you out without ever asking for anything in return and I’ve been looking for a way to make a partial payment on his kindness for years.
Once I heard he was buying a house I finally knew I had a way I might be able to help him and his fiancé. I offered to lend him my 20 plus years of experience as urban planner and city department head. I’ve seen hundreds of ways in which things can go horribly wrong in real estate. I should mention that Kris is a quite competent lawyer who works in the field of real estate for a state association. However, I’ve seen things from a perspective I didn’t think Kris’s work offered him. So, it was my hope I could be of some assistance by (1) walking the property with him, (2) looking over his home inspection report, and then (3) running through every possible disaster I could think of which might occur with his new home.
My first suggestion was to get the lot surveyed and pinned. When a licensed surveyor pins a lot they first determine the location of the corners of the lot, then they drive foot long sections of thick rebar into the ground at the exact corner of the lot. Then, they place plastic caps on those stakes which identify their surveying firm or license. Next to the pins the surveyors typically place a wooden stake which sticks up a few feet above the ground. They top the stakes with a little bit of fluorescent surveyors tape.
Once the corners are pinned and staked the soon-to-be new owner can easily see if there is an encroachment of his property by a neighboring property, and, even more ominous, whether the property they are about to buy is encroaching onto the property of another. This issue of encroachments brings up all kinds of nasty issues, one of which is termed adverse possession. We’ll skip that topic in this post because it is so vast and can be quite complex.
The good news is that Kris and Dena’s potential new home was situated properly and the only issue revealed by pinning the corners of the lot was that a fence on one side of their property may or may not have a bit of wander to it. At one end the fence appeared to be about six inches on to the property under consideration, and at the other end it may well have been six inches on to the neighbor’s property.
There is a considerable body of law concerning fences. Further, there are some very strongly held opinions about what is right and what is wrong when dealing with a fence that is not exactly on the property line. However, one of the things they don’t formally teach in law schools is how to get along with your neighbor. Sometimes if the fence isn’t exactly on the property line it isn’t really ever going to be an issue, unless you make it an issue. I think this was such a case.
Telling a brand new neighbor to move his fence off your property is not normally how you should start a relationship. My advice to Kris was to leave it alone. The fence looked like it only had a few more years of life left so when it does fall down the best path is to just talk with the neighbor. Remind them that you had the survey and that you ought to jointly agree to put the new fence up on the property line. Ninety nine times out of 100 this is the best solution.
While we were walking the property and looking at the boundaries we saw a large sewer manhole in an area that might have been close to, or within, the property’s boundary. Sewers are typically run along the natural drainage areas (the lowest areas) of the property. And Kris’ potential property backed up on a creek. One of the wisest men I ever worked with was the city engineer at my last employer. Every time it rained hard I saw the guy head out of his office wearing his galoshes and his rain gear. I went with him on several of these outings. He told me that the best time to check your drainage control infrastructure is during a heavy rain after a long period of rain. It is only once the ground is truly saturated you truly see how water flows on the property under the worst case scenario. The weather during our inspection wasn’t quite that bad but it did allow us to see how the property drained.
One of the next things I was able to do for Kris was to locate a digital copy of the subdivision plat. The good people at the Boone County Recorder of Deeds were able to provide a PDF of the plat – for free. I was able to turn that document into a JPEG and overlay it on to an aerial photo on Google Earth. That graphic is below.* It shows how much of the property is dedicated to drainage and utility easements. In this case it covers a significant portion of the lot. That much coverage is not a deal breaker in my mind, however one needs to be cognizant of the fact that you can never build permanent structures within those easements.
Also the city, or sewer district, or whoever owns that the easement can come in there and dig it up anytime they want. They are not even obligated to be nice to you in the process. So, if you can live with the remaining area of the lot that’s available to you for building or putting on an addition to the home, it shouldn’t be a problem. If you need the entire lot it might be best to walk away.
Once Kris and I were on the property one of the other concerns I expressed was that with the city sewer being so close to his property – in both and distance and elevation – he should consider purchasing sewer back up insurance of at least $50,000. As a city employee I’ve been at several city meetings where we were confronted by citizens whose homes had been flooded by raw sewage – due most likely to a backup in the city sewer line – or an especially heavy rainfall where the storm sewers overflowed into the sanitary sewers, and the city was doing everything they could to avoid taking responsibility. At those meetings I heard the term “act of God” invoked by the city more than once. Now that’s not the way it ought to be, but often it’s just the way it is.
If it does happen, and even if the city does take responsibility, it may be months before you get a check. So I think it’s wise they have this sort of coverage written into your homeowner’s insurance policy. Also plan on being relocated for the 30 to 60 days it’s going to take your remediation contractor to tear out all of the flooring, wallboard, wood trim, appliances, and electrical which were damaged in the sewer overflow. Please make sure you also have temporary relocation coverage in your homeowner’s insurance policy.
I wish Kris and Dena well. I hope I haven’t ruined the joy that comes from buying their first home.
*I won’t give you a lecture about how overlaying a scanned PDF created from an old paper document, which itself may have been a copy of another document, which was made of paper and thus subject to expansion and contraction related to the humidity and temperature levels at the time of scanning, and which was originally drawn on a flat plane by the surveyor (And with said surveyor not using geodetic math, coordinates, or a geodetic projection) and then how the act of draping that image onto an aerial photo (which itself has been roughly “projected” on to the surface of a sphere) really messes up any hope that the plat will overlay the areal photo with precise accuracy. Nope, I’m not going to confuse you with those issues. However, I will tell you that the image I created tells you what you need to know about how much of the parcel is buildable.
Also remember this image was taken by a camera in the belly of a business jet. The airplane was located to the Southeast of the home site when it took this photo, so all above ground structures lean to the Northwest in this photo. That may make them appears to cross property lines. However, the intersection of where the homes meet the ground is generally accurate.
One last note. This article shouldn’t be considered legal advice because everyone’s situation is different. If you need legal advice please contact an attorney, maybe even me.