Have Legal Questions? Ask a Lawyer Now.
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.
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.
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.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).