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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 23116
Experience:  14 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 24+ yrs
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I purchased a foreclosed home on ten acres in the back of a

Customer Question

I purchased a foreclosed home on ten acres in the back of a 40 acre tract in Montgomery Alabama. The person who built the house owned the entire tract of land at the time the home was built (2006). She recently went through a messy divorce and her husband took possession of the home and then let it foreclose. Meanwhile, she listed and sold the remainder (30 acres) of the property. Before it sold though, she told the bank that was foreclosing on the home that there isn't a water easement and she was cutting off the water line that travels from her barn to my house. She turned the water off last month when she sold the land and barn and the new owner is keeping it off. The meter is at the front of the property (on the new owners land) and the new owner had it changed to his name.

I spoke with the water company about the matter. They said they didn't know who the meter ultimately belongs too, but since the original owner allowed the water to be changed into the new owners name they weren't going to get involved. They did say they could put in another meter next to the original at my cost, but I would need to run water to my house from the meter. They made it clear that they do not own the water lines past the meter. Now to my question, can I run water down my existing ingress/egress easement? My current real estate lawyer (closing lawyer) wasn't sure if I could run a water line via an ingress/egress easement. As an FYI, the current owner made it clear that they will not willingly allow me to get water through their property (they were hostile at the request). At this point, I would be glad pay to run the water and put in a new meter. I just don't know if I can use the ingress/egress easement for that. If I can't, do I have any other options? The property is valued at $450k. It would be a shame to let it sit without water.

Anyway, I would prefer the water meter to be on my property instead of at the front of the 40 acre tract as well. Along the same lines, can the easement be used by the post office to deliver mail at my house instead of in a PO box? The new owner took over the existing mailbox as well.
Submitted: 1 year ago.
Category: Legal
Expert:  Barrister replied 1 year ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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I am sorry to say it, but no, you couldn't use the ingress/egress easement for running a water line if the underlying property owner would not allow it. An easement is a particular property right that allows the holder to use the underlying land for a specific purpose. It is not able to be expanded for other purposes than that for which it was originally granted unless the underlying landowner agrees in writing to do so.
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As for the mail delivery, if they are using the easement for delivering the mail, I would opine that would be permissible since the ingress/egress right extends to you, your guests and invitees.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 1 year ago.

Since the water lines are already there and in the ground supplying the house can I get a prescriptive easement or anything else like that?

Expert:  Barrister replied 1 year ago.
Unfortunately no. You would have had to have the lines there for at least 20 years in order to claim a prescriptive easement under AL law. There is no law that gives a property owner the right to cross another's property for utility services, only for ingress/egress if the property is otherwise landlocked.
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Thanks
Barrister
Customer: replied 1 year ago.

Should the title company have found this before closing?

Expert:  Barrister replied 1 year ago.
This wouldn't show up on a title search because it isn't an encumbrance on the title of the property. It might have come up on a home inspection though if the line was discovered to run over onto the other owner's property. But if you bought it at an actual foreclosure auction, then you might not have had the opportunity to have it inspected. If you bought it from the bank, then every foreclosure I have seen is sold "as is" and the bank makes no warranty as to the condition of the property.
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Thanks
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 23116
Experience: 14 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 24+ yrs
Barrister and 7 other Legal Specialists are ready to help you
Expert:  Barrister replied 1 year ago.

Thanks so much for the positive rating and generous bonus, it is very much appreciated!

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It was my pleasure to work with you and help with your question. Please feel free to ask for me if you need help with anything in the future and I will do my level best to help or get you to someone who can.

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Barrister

Customer: replied 1 year ago.

I have contacted another lawyer and they told me that the easement is implied under what he referred to as an "easement by prior use." This is due to the fact that the water lines were placed and used by the same owner prior to the property being split and sold. Does that sound legitimate?

Expert:  Barrister replied 1 year ago.
You might be able to argue that the other owner would have to allow you to run a new line next to the existing one since the old line did supply water to your property at one time. I don't believe you could force them to let you tap onto the existing line since that is their personal property.
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In order to do this you would have to file a "quiet title" lawsuit against the other property owner and ask the judge to grant you an "easement by prior use" as well as by "necessity" on the already existing ingress/egress easement. If there is no other way to run water to your property, a judge might agree that it wouldn't be unduly burdensome on the other property owner to add the additional burden on the existing easement due to the "necessity" of having water on the property for it to be liveable.. Since you already have the ingress easement this might be worth the money to file the suit to see if you can get a judge to agree.
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Thanks
Barrister
Customer: replied 1 year ago.

Just to be clear, what makes it her property? I said earlier the meter is on her property, but I have since found out it isn't. It is at the street in front of another person's property and the water line runs about 75 yards down a common utility easement before it reaches her property. The line then runs down my access easement, and doesn't service the barn at all (her property). I thought it did before but have found out from the original plumber the lines run only down the easement and to my house.


 


The water line has a shutoff valve at the common entrance along my easement that is on her property, but that is the only above ground access she has to the water line. I don't have an additional shutoff at my house. The plumber said the house wouldn't have been built to code if the shutoff valve wasn't placed for my house.


 


Do you think I can just claim the entire line?

Expert:  Barrister replied 1 year ago.
I thought that the actual line that runs to your house was a T off of her line, not its own separate line.
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But yes, if the line runs down her property (along your easement) and then over to your house, I think you have a much better argument that the entire line is yours and it just happens to run across her property and the shutoff is located on her property. If the entire line is considered yours, then I would argue that legally she doesn't have the right to turn off the meter at all since it would be your personal property.
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Thanks
Barrister
Customer: replied 1 year ago.

Thanks for the quick response. I just called the barn hand and had him look directly into the box. There is a single hose bib in the box along with the shutoff valve. He assures me that is the only access to the water line. Does the hose bib in the box change anything?

Expert:  Barrister replied 1 year ago.
No, I wouldn't think so. That by itself wouldn't somehow serve to make the line the neighbors.
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Thanks
Barrister

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