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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 4694
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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I have owned two lots next to each other, one lot having a

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I have owned two lots next to each other, one lot having a underground reservior on it since 1984. I knew shortly after purchasing the lots a reservior was there, but never had time to build on it or use the lots.
In 2000 I tried to trade the lot with the reservior to the HO Association for another lot, but the deal never happened.
I became an officier in the Association and recently became aware that the home owners association owns another lot with a reservior, and is paying the taxes. With this information I asked the association to consider purchasing only my land the reservior sets on and have it replotted into one big and small lots. This way they own it and pay the taxes like the other lot with a reservior. I made them a very fair offer, but they say they have been doing this so long that they have prescriptive easement to my property.
Submitted: 1 year ago.
Category: Legal
Expert:  Irwin Law replied 1 year ago.
Hello, and thanks for submitting this interesting question. I live a long, long way from SD, so I am not familiar with underground reservoirs. Or perhaps we call them something else in the Midwest.
Please tell me what these are, and how they are used. Also, you said that the association says it has been "doing this" so long that they have a prescriptive easement to your property. Exactly what have they been doing on your property in order to claim such a right.
Customer: replied 1 year ago.

The reservoir is a concrete box that water is pumped into and then flows by gravity out to homes..


Country courthouse records show no reservoir plotted and the only recorded easements do not mention any reservoir. The only mention of easements is a six foot easements on each side of property lines for utilities.


The reservoir and road to the reservoir in more than twenty feet from the property line and crosses both of my lots.

Expert:  Irwin Law replied 1 year ago.
I do not feel that I know enough about this type of device, so I will open the question up to others.
Customer: replied 1 year ago.

I am paying assessments each year for the two lots to the homeowners association plus county taxes on both lots. The reservoir sets on one of the lots and is outside the covenants easements and never was plotted or filed legally when surveyed. They must cross both lots to get to the reservoir.


I want the association to purchase the land the reservoir sets on. And allow me to combine the two lots into one big lot for me and a small lot for the reservoir so that I pay one assessment and one county tax. I am willing to divide cost to do such.


They are willing to allow me to combine the two lots into one and give them the reservoir land and a twenty foot easement for nothing if I pay all the expenses to have it re-plotted.


They believe they have prescriptive easement right. This is the legal question I am asking.

Expert:  Irwin Law replied 1 year ago.

Hi. I'm back and I'll try to shed some light on the easement issue. A prescriptive easement is obtained by adverse possession. It is by use over a period of time, which use is adverse and without permission from the owner, plus other elements. See: http://www.nmitraining.com/2010/03/prescriptive-rights/ The time period in SD is 20 years. If the Reservoir was put there in 1984 by the association for its use and you bought the lot afterward, it would appear that they might have established an easement for it to be there and for them to have reasonable access to it. But prescriptive easements can be tricky as this South Dakota case shows. See: http://www.pirate4x4.com/forum/land-use-issues/337156-south-dakota-court-decision-flies-face-reason.html If you can prove that at sometime prior to 20 years you gave the HOA permission to cross your lots, or that their use did not interfere with your use in any way, you might defeat that claim. It's odd that someone would build it without first obtaining permission from the then owner, and if you can prove that it would help your side of the argument. On the other hand, I usually counsel settlement rather than litigation in cases like yours. It shouldn't be that difficult to survey and deed off part of that lot to the HOA and retain the rest. The county assessor could combine the two for tax purposes. I'm not sure why re-platting would be necessary but the HOA should be willing to share that cost. Both parties would benefit and not have to litigate the matter.

I hope that this information is helpful. Please click on a smiley face so that I will be compensated for assisting you. If you have a follow up question please send me back a Reply without entering any rating. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

Irwin Law, Attorney
Category: Legal
Satisfied Customers: 4694
Experience: Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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