Drain pipe not on easement

Are you sure the pipe is the HOA responsibility? What does it drain and where does it drain it to? Most storm sewers would be city or county responsibility, although in my county gated HOAs are responsible for their own storm drainage systems, so the HOA does own those if you are gated. Most sanitary sewer lines would be owned and maintained by the utility (water company).

If the pipe is HOA responsibility then it would be a good idea to get it inspected. My county requires gated HOAs to have an infrastructure inspection by an engineer every three years, which seems like a reasonable interval. If you do own the pipe and you've never had an inspection, maybe it's time to bite the bullet.

If the developer installed a pipe outside an easement, and the pipe is part of the infrastructure now owned by the HOA, it really doesn't matter if the "HOA" put it there or not.

Not so sure.

Easement created the right to place the pipe. But didn't necessarily create the obligation to maintain the pipe.

Sure the builder could be liable, but not so sure that HOA takes on that responsibility once builder is gone.

Depends on what the organizing docs say. HOA may have obligation to maintain the pipe, but that does not mean that HOA has obligation to relocate pipe.

HOA may want to share cost with homeowner. Maybe not. Maybe come to an agreement.

Think we need more details.

Pipe was probably laid before an owner acquired the lot. Assuming that developer still owned the land when pipe was laid, then reasonable to assume that developer gave permission. Once permission granted, don't see where subsequent owner has claim - unless of course there is more information than the OP provided.

Maybe the pipe is a leader off of the drainage main going to each individual house to pickup the stormwater runoff from the downspouts.

Both the HOA and HO need to do more sleuthing. This could be the storwater equivalent of a side sewer.

Perhaps OP will provide some detail so that we don't have to make guesses.

An "as installed" project does not always match up with what's on the blueprints. Construction defect claims may have existed when project was built, but such claims have statutes of limitation limits and are only good against party responsible (or their insurer).

Not sure why there are so many misconceptions about easements on this forum. Can you cite some authority for this supposed right to demand relocation of a pipe to a recorded easement?

BTW, unrecorded or prescriptive easements can exist for sewer lines. Courts have found in favor of the owner of the pipe. For example, see the following case where claim was denied because made 25 years after installation and statute of limitations was 3 years.

http://law.justia.com/cases/california/court-of-appeal/3d/204/228.html

Maybe because it is a far more complicated subject than you think.

The current version of Restatement of the Law Third: Property (Servitudes), published by the American Law Institute, fills two volumes totaling over 1300 pages. This is the authority that lawyers, judges, and legal scholars turn to for guidance. Perhaps you could offer your services as those people seem to be complicating a very simple subject.

One can purchase his own copy at https://www.ali.org/publications/show/property-servitudes/

I agree that the topic of easements is complicated. I don't agree with the belief that is often expressed on this forum that easements must be recorded in order to be valid. That's not so. Depending on the circumstances, unrecorded or prescriptive easements are legally recognized in every State.

I cited a case where a challenge to an unrecorded sewer easement was found in favor of the pipe owner. If you want to see how complicated the subject is, you can read that case or a similar one. There is no shortage of disputes about easements (both recorded and unrecorded). Every State has those cases.

I'm aware of the Restatement of Property. I'm also aware that each State decides which portions of the Restatement it adopts into law. One of the sub-topics in the Restatement is unrecorded or prescriptive easements. Another sub-topic is recorded easements. So absolutely, I agree that the subject is more complicated than just recorded easements - It would be nice if others did too.

Then again, pointing to a 1300 page volume and saying "it's in there" isn't particularly informative.

If you want to have a worthwhile conversation, cite a case where a pipe owner was required to move the pipe because there wasn't a recorded easement - and I'd be glad to discuss with you.

Would appreciate if you cited the case so I can respond appropriately.

Not quite.

I agree that the pipe "should have been laid" in the "recorded easement". I do not agree that the pipe "should be in" the "recorded easement".

The pipe "is" in an easement - even though it's not in the easement that was recorded.

To accept your line of thinking, I would have to agree that there's no such thing as an "unrecorded easement" which I cannot do.

I agree that a court will likely rule that the pipe can stay where it is - AKA - the court formally acknowledges the existence and legitimacy of an "unrecorded easement."

Easement disputes have been going on for centuries - long before recording offices even existed. Building things in the wrong place has also gone on for centuries - and if the consequences are big enough and if people are willing to spend the time and money, the right to use property owned by someone else's land is decided in court.

If you want to look at how complicated sewer pipe easements can get, here's a link to a surveyor's blog about trying to prove an unrecorded easement from the 1920s:

http://surveyorconnect.com/threads/pa-specific-unrecorded-easement-from-the-1920s.151634/

Read that case again. The court very specifically rejected the argument that the unrecorded sewer permit created an easement. It found for the pipe's owner on other grounds, namely statute of limitations and fairness.

"as built" drawings, in many cases, will vary from the original design drawings

BUT

not by such large amounts as to constitute requiring new permits or change orders

eg.

receptacle 'speced' as 9'7" from west wall but actually installed 9'11" from said wall is OK

drain pipe 'speced' 33' from and parallel to east property line but actually installed perpendicular to line and running under a foundation is NOT

Attacking me personally doesn't prove your point.

I have now asked several times for you to cite a case that supports your point of view. The fact that you haven't done so speaks volumes about the weakness of your perspective.

Another attempt to personally attack me. Do you really think that accomplishes anything?


As the appellate court stated, the existence of a prescriptive easement is a finding of fact, not a finding of law.


Don't agree. The court ruled that if an unrecorded permit was the only factual support for the trial court's decision, it was not sufficient notice under the circumstances. But because the appellate court did not do any factual inquiry, it could not have ruled denied the existence of an easement. The court then went on to say that it was irrelevant because of the statute of limitations and other factors.


The appellate court said that the case could be decided without basing it's decision on the prescriptive easement. Because the existence of a prescriptive easement involves a finding of fact, the case would have been remanded to the lower court, not overruled.

We can disagree if you like, but as I have been saying repeatedly on this thread, the factual circumstances matter and we don't have enough detail from the OP to go very far in the discussion.

Meanwhile, I'm still waiting for you to get past your personal attacks and cite a case of your choosing that supports your point of view on the legitimacy of unrecorded easements.

Holly S1 Fla :

MarkM31 may have hit the nail right on the head with this earlier comment above : " Maybe the pipe is a leader off of the drainage main going to each individual house to pickup the stormwater runoff from the downspouts. Both the HOA and HO need to do more sleuthing. This could be the stor(m)water equivalent of a side sewer."

The development's initial site servicing plans may ( ? accurately ) show where & how subdivision drainage was planned be applied to service homes & common areas alike. Buyers may have taken title lawfully subject to this inter-dependent site servicing without an arms-length 'easement analysis' - nor even documents - even being triggerable now. Think instead ? : digging up buried electrical cable serving homes & common areas, not really arms-length scenarios.

If it's a breakdown of general subdivision-wide drainage components, this might turn out to be be a common element repair & replacement from reserve funds.

But a different matter ( and different systems ? ) may be arms - length, genuine easement relationships to document drainage from dominant tenement beneficiaries, burdening servients. Maybe even serving or burdening land not even within the subdivision.

Whatever they are, the engineering 'factuals' may well need to be adequately sorted out beforehand as Mark M31 suggested. Until that time maybe shaky to speculate the legals . . .