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JBaxLaw
JBaxLaw, Lawyer
Category: Real Estate Law
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Experience:  Experienced Real Estate Attorney! How may I help you?
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I am part of a trust that owns land in Florida. We are in

Resolved Question:

I am part of a trust that owns land in Florida. We are in the process of selling the land and during the process it was found that the neighbor has a septic tank and driveway that infringes on the property. As part of negotiations with the buyer they have offered to connect her home to city water and sewer free of charge and reroute the driveway so they have continued access to the land.

The neighbor is refusing this offer as they state they prefer to keep the septic and do not want to incur monthly costs of a water bill. They are now threatening to file a Prescriptive Easement to have continued use of the land where the septic and current drive way resides. They have been neighbors and had use of the land for over 20 years in the current state. This is slowing / stopping the real estate deal.

My questions are:
(1) Do they have a case for Prescriptive Easement
(2) What rights do we have as a property owner to stop this. The trust became owners of the land in August 2010.
(3) If granted the easement what rights does it bestow on the neighbor?
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  JBaxLaw replied 10 months ago.
Hello,

I am a professional here to assist you. I appreciate your use of this service.

Is the septic tank or field obvious in any way or is it, like most, hidden and out of view?

Did any previous owner grant express or implied permission to use the area for the septic system?

Thank you
Customer: replied 10 months ago.

The septic tank and field are essentially right in front of the house and is pretty obvious.


 


The previous owner of the land was the mother-in-law of the neighbor. The neighbor's deceased husband was deeded an acre of land to build a house. However, when building they went beyond their deeded land. Nobody knew of this encroachment until the trust tried to sell the land.

Expert:  JBaxLaw replied 10 months ago.
One of the requirements for a prescriptive easement is that the use must be known and obvious. You state the trespass or encroachment was not obvious or known until the sale. The time period required for a prescriptive easement does not run until the hostile use is obvious.

Please follow-up with me as needed. This is intended to be an ongoing dialogue until you are satisfied. I rely on positive service ratings and bonuses to provide information at this site. I would really appreciate a positive service rating.

Thank you
Customer: replied 10 months ago.

Thank you.


 


Do we need to take any proactive measures now in order to protect ourselves. Essentially I want this resolved so the real estate transaction can complete. The buyer will not move forward with pending legal action. So what is the quickest method for me to get a legal / binding resolution that she has no claim to the land ?

Expert:  JBaxLaw replied 10 months ago.
She can file a Lis Pendens with the office which records deeds placing the potential buyer on notice of pending litigation regarding her claim to the alleged easement. The fasted resolution in these situations is informal resolution. For example, a written agreement granting her an easement to continue to use the property. If you intend to stop her use and prevent her from making a claim then you would need to file a civil suit and that would be time consuming, costly, and interfere with potential sales.

Please follow-up with me as needed. This is intended to be an ongoing dialogue until you are satisfied. I rely on positive service ratings and bonuses to provide information at this site. I would really appreciate a positive service rating.

Thank you
JBaxLaw, Lawyer
Category: Real Estate Law
Satisfied Customers: 11310
Experience: Experienced Real Estate Attorney! How may I help you?
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