Adverse possession in North Carolina? (Chapel Hill: sale, real estate, chapel)

[alice_61]

Does anyone have any experience with adverse possession in North Carolina? We have a contract on a house in Chapel Hill. The sandfilter septic system for the house drains on a little landlocked parcel behind the house. The drainage for the system can't really be changed because of the topography and small size of the house lot. The house and septic system were built in 1967. The little parcel is owned by the many unknown heirs of the original developer so we have been unable to purchase the little lot. We are thinking of trying an adverse possession case for the little lot and would appreciate any experience or advise that you have with it.

Thanks,
Alice

[alice_61]

Sandfilter septic systems are different than conventional septic systems and require an operating permit from the NC Dept. of Environmental Quality. Therefore the drainage for the system has to be on house property or on land with an easement.

[mm_mary73]

Originally Posted by alice_61

Does anyone have any experience with adverse possession in North Carolina? We have a contract on a house in Chapel Hill. The sandfilter septic system for the house drains on a little landlocked parcel behind the house. The drainage for the system can't really be changed because of the topography and small size of the house lot. The house and septic system were built in 1967. The little parcel is owned by the many unknown heirs of the original developer so we have been unable to purchase the little lot. We are thinking of trying an adverse possession case for the little lot and would appreciate any experience or advise that you have with it.

Thanks,
Alice

What did the person who owns the place do - did you not know this before you made the offer? What does your attorney think?

[alice_61]

This is certainly a mess. We have a contingency to back out of the sale if we need to but we want to buy the house since it is one of the very few in our price range in Chapel Hill. It'll be the middle of next week before our attorney will be back in the office.

The sandfilter system was installed in 1967. The Clean Water Act was passed in 1970. Most legislation grandfathers old construction, etc. but not the Clean Water Act. It requires federal regulation of sandfilter systems. The feds pass the administration to the NC Dept of Environmental Quality.

[CaliBoy]

"In North Carolina, the duration of such possession is seven (7) years under color of title and twenty (20) years elsewhere. North Carolina Code §1-35 through 43."

"A claim to title by adverse possession often must be made under color of title. Color of title means a claim to title by way of a fact which, although on its face appears to support a person’s claim to title, is in some way defective and falls short of actually establishing title to the real estate. An example of a claim made under color of title would be a deed whose execution was defective or is in question. Another example is a claim arising from another person’s Last Will and Testament. Yet another common example is where two or more persons have received separate deeds to the same parcel of real estate."

With that said, using adverse possession as a means to establish an easement might be weak in this case, but could be do-able. However, from my experience, and not to rain on your strategy, it might cost you more to fight the claim than what you are willing to spend. Even if you have a case, it appears (based on my conversation with lawyers) that judges don't like such cases and will oftentimes find ways to defeat a claim via adverse possession. However, even if a judge did so, you could win in appeals providing you actually have a case. Of course, this is one to discuss with 'several' attorneys because, based on my own experience, a lot of lawyers are really unfamiliar with AP cases and the intricacies of such a case.

Of course, I'm not a fan of lawyers, even though I have two in retainer at all times. They frustrate me. Not all, but in general terms.

Other than that, I would try to make it a daily research project regarding the
sandfilter system. Sorry, I am unfamiliar with these systems, and I don't know if something like that can be grandfathered in for use, or if you can continue to use it as it was designed. Although, if the "heirs" are not noticing or do not mind, it may not a be a big deal. Not until one of those "heirs" comes forward and disputes it. Then that becomes a big mess for you, and could cause headaches when you plan to resell.

I'm not a realtor, but what is the price range you are working with in Chapel Hill? PM me if you want to keep that private. I recently moved out here in the RDU area and I can definitely sniff out deals (we own right now, but am always looking to partner with people on deals too).

Good luck. If you have any reservations, and I mean real concerns that will not let you sleep well at night, then back out if you cannot get the answers you need. Nothing worse than buying that house and committed to a loan only to find out you just moved into a money pit riddled with issues. If you found this deal, as hard as it is to believe, there are more out there!

[mm_mary73]

[quote=CaliBoy;253987
.....Although, if the "heirs" are not noticing or do not mind, it may not a be a big deal. Not until one of those "heirs" comes forward and disputes it. Then that becomes a big mess for you, and could cause headaches when you plan to resell.....[/QUOTE]


I assure you "heirs" will arise out of the woodwork - it is indeed a big deal!! Too bad no one thought to mention this before the offer was made. I would definitely NOT close on this until you get some sort of easement waiver or the like that will CYA. Perhaps this is why you're getting such a deal on the house..... think about it - sellers are not stupid.

[alice_61]

I'm sorry to hear the poor prognosis for an adverse possession case but do appreciate very much the dose of reality. We definitely wouldn't close on the property until the current owners have an operating permit for the septic system. Because of the Clean Water Act, grandfathering doesn't seem to be an option. While discovery by the heirs is a concern, obtaining an operating permit now and in the future is even more of a concern. I don't think an operating permit would be issued to a system that drains on an adjoining property without an easment.

Well, we'll continue to look for other properties and leave the burden of obtaining the operating permit to the sellers. Hopefully their desire to sell them to sell will force them to come up with a solution. It does seem that the sellers didn't know about the operating permit requirement. We discovered it in searching for the legal requirements for building an addition to the house. We don't want to risk not having one.

As far as looking for other properties, we'd prefer to be in Chapel Hill for the schools, library, and to be close to my mother, who lives there. This house was <$200K, which is good for us.

Thanks a lot for your help!
Alice

[alice_61]

CaliBoy,

Was the advise you received about adverse possession in NC? It seems to vary a lot from state to state.

Thanks,
Alice

[mm_mary73]

Originally Posted by alice_61

Well, we'll continue to look for other properties and leave the burden of obtaining the operating permit to the sellers. Hopefully their desire to sell them to sell will force them to come up with a solution. It does seem that the sellers didn't know about the operating permit requirement. We discovered it in searching for the legal requirements for building an addition to the house. We don't want to risk not having one.

As far as looking for other properties, we'd prefer to be in Chapel Hill for the schools, library, and to be close to my mother, who lives there. This house was <$200K, which is good for us.

Thanks a lot for your help!
Alice

Where in Penna.??? I'm from NEPA! Anyway, I am naturally suspicious that the sellers "didn't know" - if it's a great property and you really want it AND there's nothing else an inspector or detailed title search uncovers, let the sellers solve the problem. Sounds like someone let you down, bless your heart. Don't give up....... Be sweet, fellow Pennsy person!

[alice_61]

mary,

We're in State College (which I love!). I do believe that the sellers didn't know about the operating permit. They are from El Salvador and don't speak English well. Anyway, I'm hoping that their desire to sell will spur them to find a solution.

Thanks,
Alice