Home Buying in Hudson>Question Details

Rita Vazquez…, Both Buyer and Seller in Hudson, MA

We just found out some disturbing news... it seems during the property search that the additions made to the house we have a P&S on, there is a

Asked by Rita Vazquez-Torres, Hudson, MA Thu Nov 10, 2011

drain/ sewer easement going through the property. In 2006 the sellers built an addition to the house and a beautiful in ground pool 33% of which at first glance, seems to have been built ON THE EASEMENT, as did some of the addition itself. The attorneys are working it out. I'm curious, how could something like this happen? didnt; the current owners when they buy the house in 1998 also do a title search? Can they build without permit? We are hoping all has an explanation and clears... otherwise... shouldnt a drainage/sewer easement be noticed on the disclosure? There is nothing to that effect on the disclosure.

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Rita- Not uncommon for sellers to realize they do not have an easement on the property. That is more common than one might think. If they haven't had to deal with it, they don't think about it.

If the house or pool is built over the easement that could pose a serious problem in the future. While it is not uncommon for utility easement to pass through a property, where a seller could live there and never have an issue, the problem occurs if the utility needs to be serviced. If they truly built into the easement, they may not have had the right to do so.

Looking at the plan and its hard to tell, it looks as if the easement runs acoss the driveway in front of the house and ties into another main easement to the left hand side maybe....

It will be important moving forward to understand, if and how this can impact you in the future. It certainly is a reason to walk away if this had not been disclosed and you feel it may become a problem in the future.

Everyone is different and has different tolerances, but as long as the easement was not covered by the house or pool and I really enjoyed the house, it would probably not overly concern me. But like I said that is a personal decision. Obviously, a very frank discussion with your attorney is important.
1 vote Thank Flag Link Thu Nov 10, 2011
I am in Texas and I am currently looking at buying a house, that we just found that the in-ground pool may have been partially built into a utility easement. #1 shouldn't this be disclosed on the Seller's Disclosure and #2 should we walk away from this sale? We are concerned that this could potentially be an issue if the utlity company needed to do work in the easement and what problems do we face down the road when selling ? Will a mortgage company even approve a loan on this house?

Any feedback would be appreciated.
0 votes Thank Flag Link Thu Jul 26, 2012
If all goes well, we will be in this weekend and for the holidays! So thank you!!!! if something else doesn't happen. My broker told me that 95% of buyers would have given up in the first WEEK of dealing with the sellers team, leave alone sticking it out for as long as we have, and being willing to work with the sellers and help them solve the title issues. All things considered, we hope this is the worst of the news, we can clear the title and move on with a property we truly feel fits our needs. THANKS FOR EVERYTHING!!! I am recommending Trulia to all my friends in the market!
0 votes Thank Flag Link Tue Dec 13, 2011
Joe and Rita,

That's reassuring, that you won't at least be homeless for the holidays. And perhaps the owners would be kind enough to even credit some of the rent to the ultimate sale, if that goes through.

As for the locations you are interested in, maybe there will be some great alternatives suggested by the real estate pros on this website. Perhaps if the right property comes along, which does not have any title issues, you'll be able to quickly relieve yourself of the whole title problem.

Keep your chin up, and your mind open to other possibilities.
0 votes Thank Flag Link Sun Dec 11, 2011
Well, it came up for rent at 500 less a month than when last listed for rent. We are entering into an agreement with them, renting the property and working with them to clear the title. We engaged a new team of legal advisors that have resolved these types of issues and we are sharing in the effort. As some of the comments here, this happened quite frequently, in properties built in the 1975-late 1980s timeframe when some laws changed and some builders went under. When banks pretty much lent money to anyone, it was easier to get past title issues. Few current conventional financing options will lend money on a home with this type of issue, despite the fact that the sellers attorney told them that another buyer with financing other than VA (yes most stringent) would not have to deal with the title issue. The seller recognizes that it's still limited lender pool and under those conditions the buyer would have to have close to impeccable credit and substantial cash down for the bank to accept the risk. So, we are doing a 6 month lease and if it seems it can't be resolved we will move on.

There is a bit of leg work to do, but the easement is truly rendered useless. It's a matter of finding who owns it and how many homes abut it (9). We shall see.... :)

Hudson, Marlborough and Northborough, MA
0 votes Thank Flag Link Fri Dec 9, 2011
Thank heavens that you learned about the problems BEFORE you bought the house. Its sad that so much time and effort were expended in this wayward process. You deserved better treatment.

Your resolutions for the new year sound extremely wise.

Please consider mentioning what areas of Massachusetts you would consider searching for a new home-- or even consider for temporary housing. That way, with all the folks reading this forum, you might be able to get some quick resolution to at least temporary living quarters.
0 votes Thank Flag Link Thu Dec 8, 2011
The house has been taken off the market. With all our possessions in storage and a quaint room at a hotel, we watched hopelessly while the tape survey showed that in effect there was encroachment by the house as well as the pool, 4 days before our rate and deal expired. Much to the "defense of brokers" of many brokers, the agent failed miserably on doing homework on the home. Since we are frantically looking for a place to rent and/or live, it is AMAZING how well prepared the 7 different SELLER brokers have been - titles, permits, home history, EVERY DETAIL we have asked for, they have had readily available to our seller broker, and have been SUPER amazing. Today my husband drove up to a property and walked around it. When we told the seller broker what we did, she gleefully replied "IM GLAD YOU DID! Lets go in and see it!!!!" which made our seller broker smile with joy and a sigh of relief. The bottom line, is YES YES "OH GIVE ME A HOME!" permits dont guarantee that the construction is legit. The sellers are dismayed - they can't rent the property until the clear the issues - and although the easement is deemed of no use to the town and not in use, because it abuts 12+ homes, its up to the court to decide how the title can be cleared. The seller either gets all 12+ on board to sign off on it, or they chop 1 foot off the house and fill up/eliminate the pool. Its a very sad situation. Needless to say we are "homeless" for the holidays with a dog, but in the meantime we have learned quite a bit about real estate, husband looked at about 15 homes in one day, and we have learned a lot about attorneys, and real estate agents. So, here are my resolutions for the new year:

1. Perform a back ground check on the sellers, the attorneys and the sellers agent
2. Interview agents. Ask them - if you didn't sell your own property yourself, who would you use and why?
3. When you are ready to make an offer, make sure that the sellers provide ALL information on the property - much as if you did a car facts. Has the house been in fire? Flood? Earthquake? Wind damage? Roof? heating system? etc. Make a check list.
4. Make a prioritized list of things that are absolutely necessary to you in priority order
5. Be willing not to NITPICK on findings from home inspections. Unless new construction, homes always endure "wear and tear" - just be honest with what you are willing to negotiate or not negotiate.
6. Look beyond the paint and wall paper - HOWEVER - time is MONEY. How much time/money are you willing to expend removing wall paper? Is it that important (WE HATE WALLPAPER! but don't mind paint!)
7. Ask about an agents track as a buyers agent AND sellers agent - make sure that they are courteous and professional regardless of which side of the fence they are on. Understand as a buyer that the seller's agent will take care of their client - but they have to be professional and responsive to your agent. Otherwise, it will make life difficult
8. Go to the town yourself and research on the property if need be - its not that hard, just time consuming
9. Don't get in the habit of making offers and having sellers jump through hoops just to pull out of the deals. After the 3rd time, agents catch on and word spreads, as happened with one of the houses we went to see yesterday - they were afraid we'd do the same thing.
10. Look for your dream home but be realistic on your expectations for lifestyle - biting off more than you can chew is not worth it in our economic times.
11. If it smells like a rat, its a rat. Walk away
12. Don't hire attorneys that won't get back to you. YOU ARE PAYING THEM, but remember, you pay for every second of their time! Every email and call...
13. Don't feel afraid to complain about a broker directly to the parent company. There are some folks out there that just hurt the profession.
14. Expect your seller broker to be pro-active and creative. One of the homes we saw yesterday had little signs such as "Take a look at this feature, it provides added privacy" baked cookies and cold ice water with "welcome to this home, please enjoy a snack while you browse". These details ENTICE buyers!
15. Ask for different opinions and assistance
16. If a listing is described differently in different sites - RED FLAG someone is playing poor marketing games...
17. Be willing to walk away and not look back
18. Have a back up plan

GOOD LUCK!
0 votes Thank Flag Link Wed Dec 7, 2011
The title folks, attorneys amd seller are hashing title out. Not sure if the whole thing will fall through. And to boot the seller agent has not updated MLS across the board, whereas a fellow broker from another town, has had all the properties she is working on, consistently updated. The discrepancies in MLS caused problems when we went to gomforminsurance, because the square footage is different in 4 different places AND the insurance and bank both want to know whynits still listed for sale, when we even got the good faith commitment. I'm shocked at the same company, the discrepancy on how brokers operate...
0 votes Thank Flag Link Wed Nov 23, 2011
Rita,

Congrats on your progress, and all the Trulia support.

Territory RE brought up the important point about checking setbacks, among other issues. Its important to realize, Rita, that simply because a permit was issued for work does not mean that the work was performed accordingly, and that even the permit itself was legal.

Several issues you may want to consider:

1) Independent survey of the property. Is the pool closer to the property line than allowed by the current zoning. Was it built in a location different than what was described on the permit? The value of a property can be negatively impacted by such deviations, and even litigation with neighbors could be avoided if such facts are discovered and dealt with before the sale. More reassurance may be better for this property already mired in legal confusion.

2) Structural engineer confirm the work quality related to the tree damage. There are defects that could be hidden, such as to the roofs plywood support or to the beams. There could also be cracks in other joists that need additional support, such as a "sister" beam added.

3) Open disclosure of the repairs. Perhaps the owners don't want you present while the workers are doing the work. On the other hand, you are buying a house with defects, and deserve reassurance that the repairs are being done correctly. If there is hesitation on the part of the owners for your seeing the work in progress, maybe an independent inspector would be prudent to check that the job is completed well.

4) Review of the adequacy of the utility infrastructure -- you may want to have an inspector also review if the water and sewer lines are adequate for the development. Sometimes, when difficulties have arisen with getting permits, there are underlying concerns about the size and age of the water and sewer lines, as well as storm drainage. Granted, it may not be directly in your house, but if other properties nearby were built with the old infrastructure kept and not updated, you may find yourself with inadequate water pressure or volume, sewer stoppages, and property flooding issues.

Overall, the whole process sounds very disconcerting for this property. Your patience with all the mayhem is admirable.
0 votes Thank Flag Link Thu Nov 17, 2011
Fortunately, it sounds like all will work out and this will soon be behind you. it really goes to show how important it is to work with good agents, attorneys, home inspectors and mortgage brokers. There are a ton of great ones out there.
0 votes Thank Flag Link Tue Nov 15, 2011
Well Kevin, our broker spent a whole afternoon at the registry of deeds, and retrieved every shred of paper imaginable - the owners had a long file with all permits and other negotiations. Come to find out the easement on the property is not in use and the town "finds no utility" in it - when it was originally built, there were some town growth assumptions that did not materialize, and the house it was to supply actually had their utility easement built in the opposite direction, never connecting to the one on the property. The easement is considered a "private owned easement" and part of the property owned by the sellers. We are thrilled by the news, and also saddened that all of this mayhem could have been precluded, had the sellers agent been as thorough as you are and as ours is - as she said "an hour at the registry is worth an expedient closing to me!". All that is left is the sellers signatures, the home repairs (in process!!!) and removal of the contingencies from the inspection as the final step for the financing to be in place from the sellers side. As for updates - the house is still listed as Active in almost all websites to include our brokers which is the SAME company, different town - but by now, we are used to a hostile co-broker. In order to show the house to our out of town son, we simply asked the owners directly! (the broker stated they didnt want us near the property until completion of the work, they on the other hand told us directly to feel free to enjoy looking all we wanted!) THANK YOU THANK YOU THANK YOU - Trulia has been a very good tool, and I have enjoyed watching the better agents respond, and also enjoyed some real gems... THANKS!!!
0 votes Thank Flag Link Tue Nov 15, 2011
Thank you Kevin. My agent told me that is SOP for her too - when she creates a profile for a home she is going to sell. She tries to gather as much information on the property as possible ahead of time and works with the sellers to get as much addressed in advance - she also works with her office attorney to glance over the package - she gets copies of building permits, recent renovations, information on the warranties on heating/cooling systems/other, creates a binder with the owners manuals for the appliances... I've known her for years. My husband and I are still scratching our heads over how painful this process has been... The seller had to contact me DIRECTLY (albeit his attorney), to assure me he was not going to pull out of the deal and would do everything possible to work through successful closing. We are all baffled. our attorney had to tell the sellers attorney that our "proaction" is nothing more than supporting a successful closing and not to be misconstrued as "behaving as we own the house" - which the seller and I clarified quite nicely. Now if someone could just send the sellers agent back to training, that would be very helpful!
0 votes Thank Flag Link Mon Nov 14, 2011
Rita- While listing agents and buyers agents aren't title examiners, I always spend a few minutes on the registry of deeds to see what I can see to avoid any future problems.

The easement is right there. It took two minutes to pull it up. It looks to me there is a private easement from an abutting property a public easement for a main line. Again it is not for us to determine or interpret but at least we can see if there is something to take a closer look at for the sale of the property.

I really was just curious, I have been following your posts from the beginning and wanted to see what was going on. There are good agents out there who do go through this process on every property. It really only takes a few minutes.
0 votes Thank Flag Link Mon Nov 14, 2011
Kevin Vitali, very impressive if you went the extra mile to pull the plot plan! (the sellers agent didn't even bother!!) Yes, you are correct, if first cursory review, the line is very confusing. the drain is actually located right outside of the pools fence. There are a number of plot plans dating to 1984 and 1987, and several builders went under in that development - 3 home owners had in effect to iron out their property lines, and the neighbor shares the property we are about to buy - that was ironed out in 2006. The owner emailed me directly as soon as he found out through his attorney that the title attorney (mine) had found reason to be concerned. The owner - a 20 year old veteran surveyor, stated he went through excruciating negotiation with the town to get the permit and ensure that he did not in effect encroach on the easement. Our broker is going to pull the building permit (the sellers broker is simply belligerent, uncooperative and very unpleasant to work with) to get it to the attorneys today. I encouraged the owner to send any and all paperwork he has to his attorney, as the clock is ticking towards closing. As discussed with our attorney, it is difficult to make a call one way or another until we have all the details. It seems the lines are "unused" - but that should be clarified this week as we will be doing the walk through this week. Our attorney fees are going to be incredible (and quite frankly the sellers should consider getting their brokers fee cut through the main office, since everyone else is doing the hard work and heavy lifting as well as working a lot more cooperatively than that person is!) but worth it. Thank you all for your insight, I have learned a lot in this process! What a great tool!
0 votes Thank Flag Link Mon Nov 14, 2011
Rita,
You are correct about the title search. This all comes out on a title search. The seller as a surveyor certainly knew they needed permits for the work.
Any consolation, until the matter is corrected, no title company will give insurance on the property, no mortgage.
This is the reason I always suggest everyone has a lawyer even in state where they are not required.
0 votes Thank Flag Link Fri Nov 11, 2011
Thank goodness for your attorney At this point, ignore the listing agent. She/he has one thing in mind right now and that is not your interests. Good luck and keep us posted!
Web Reference: http://territory.com/
0 votes Thank Flag Link Fri Nov 11, 2011
Well Kevin W., you hit the nail on the head with all the questions our attorney has postulated (our attorney is in Marlborough, their attorney is a well recognized figure in Hudson). The plot plan for 1987 shows the easement as well as issues on the property line, which were also shown in the 2006 plot plan that includes a settlement worked out with the neighbors. The owner is a 20 year surveyor who allegedly worked out the details with the town. Our attorney is working with their attorney to clarify the details and get ALL the associated work to include the permits and clarification on who owns the allegedly "not in service" easement. Kevin V, you have also been VERY helpful through this blog process! One disturbing piece in this process is that the sellers broker never provided a copy of the plot plan along with the disclosures or at our request. Also disturbing is that the sellers attorney has been unaware of any "issue" to include the tree that fell on the house following the storm. Our attorney had been doing research and finally contacted the seller attorney to find out, he had been kept in the dark regarding the tree and other items. The sellers are out of state. I've heard other agents who's input we have found unhelpful notice "red flags". The only red flag we have right now is really the sellers agent who is prone to creating discontent and disinformation to the point the seller bypassed his attorney and reached out to us out of fear that his broker is going to make the deal go sour. We do have to get to the bottom of the easement situation, and now that both attorneys are on the same sheet, regardless of the outcome we know that we are not at the mercy of a very incompetent broker.
0 votes Thank Flag Link Fri Nov 11, 2011
As most of the agents said below, you would be surprised how many homeowners buy property without getting full disclosure on setbacks, easements or restrictions. You have to ask the right questions or hope your buyers agent or attorney will guide you properly.

You could be looking at a big problem here with regards to the pool. There is a chance the owners will need to remove /fill in the pool prior to selling it to you or anyone else. Hard to say. Let the attorneys hash it out but make sure you don't get pressured into pursuing the property without rectified this on paper.

Good luck!
Web Reference: http://territory.com/
0 votes Thank Flag Link Fri Nov 11, 2011
Working on it? What are they going to do, move the sewer line? People build additions and make alterations all the time without getting a permit. Here is a bigger question for you, do you want a house where work wasn’t done properly? Most homebuyers participate (orchestrate) in creating problems for themselves.
0 votes Thank Flag Link Thu Nov 10, 2011
The first question I would ask is who holds the easement? Is it the Town of Hudson or some other entity. The second question is can the easment be relocated? Even if the easement can be relocated that will most likely be at significant cost to re-route sewer or drain lines, not to mention the cost for a surveyor and the attorneys fees for preparing amended documents and recording them at the Registry of Deeds. Presumably these sellers would have to had pulled a permit for both the addition and the pool and at that time they may / should have had a survey done. You would also have to get the holder of the easement to agree in writing to move the easement. The disclosure only indicates issues that are known to the seller and if their surveyor made a mistake or if they did not know of the easement it would not necessarily show up on the disclosure. Best of Luck!
Kevin
0 votes Thank Flag Link Thu Nov 10, 2011
And that is how the lawsuit started. Your attorney is the best one to answer this question. Real estate professionals - not just the hobbyists - know that running the title and getting copies of deeds, plans, morts, and related docs are a must in MA. Sometimes owners don't know what they have or don't have.
0 votes Thank Flag Link Thu Nov 10, 2011
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