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Old 11-13-2012, 01:16 PM
2 posts, read 3,005 times
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Is there statues of limitations on road easement in private developments? We are having a problem with the landowner who sold us our property and gave us an incorrect but recorded map. We have lived here 5 years, and just now this has become an issue.

Our leach field encroaches into a road easement that services one other lot. Although the lot is still for sell the owner/developer said they might like to establish a road now. The road easement is 60' wide and our leach field encroaches into the road easement 40'. This leaves a 20' road width. We already asked the owner if they could amend the easement to go around our leach field (about 70 feet in length) but response was "no". We know this can be a really boring issue but we're hopeful to find out if any one else has experience with road easements. Thanks in advance!

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Old 11-13-2012, 02:00 PM
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It should be clearly stated on your title insurance policy. If you do not have title insurance you can buy some for rather low cost and have answers on whether this easement exists legally & is binding.

Properly recorded easements do not time out. They can be amended with concurrence of all parties.
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Old 11-13-2012, 04:14 PM
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You don't have to buy a title policy to find your easements and where it is located. You can have a Title Search Done. You can also go down to the county court house, and look up the recorded easements on your property yourself.

If the map was recorded by the original owner who sold you the property, then it is the map that counts if it goes to court. He sold you a property, based on that map which had been recorded. He warrants that the property is as represented to you, based on a recorded map he provided. If the easement is other than shown on the map, you have a case to win in court.

If the drain field was there when you bought the property, then you have the power to fight with the one that sold you the land and get him to change the road easement. On the other hand if you put in the drain field, then you may be responsible to move it out of the easement.

Go down and talk to an attorney about this. If the other party is in error due to a incorrect map he gave to you, or if he installed the drain field, you may have a very strong case.
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Old 11-13-2012, 05:12 PM
Location: C-U metro
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The strength of the case could actually be very weak.

Was the recorded map signed and sealed by a licensed surveyor licensed in the State of Montana or just whatever the property owner drew up? The surveyor could be held liable for the missed easements. Just because the map is recorded, that does not mean the property was surveyed. The recording only signifies that it is on record with the county and is not necessarily a legal assessable property description. Depending on what MT law is, legal description (ie. SW/4 N/4) is not good enough for small plots of land and the developer could be creating a mess.

In Western ND, there are several developers who have created these kinds of messes with recorded maps as they were selling by the legals for 2-5 acre plots. ND law states that all plots under 10 acres MUST be surveyed to be sold. Banker ignorance (ie. lending against an illegal subdivision or plat) is not considered standing and the developers are being forced by the county, through zoning law, to get everything replatted. In some cases, fence lines are being moved but I haven't heard of a drain field or other items being relocated.

I highly recommend talking to an attorney about it and the local zoning authority, if there is one. The attorney is for you but if this is an improperly surveyed platt, you could have more than just a road easement issue. You may have built your house where the actual easement is and not realize it.
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Old 11-15-2012, 09:45 AM
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Thanks for your responses they were helpful. We just met with the Engineering company who did the initial survey and they will pay to move our septic field. We are thankful that it will be handled without the extra expense of an attorney. Thanks again!
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