easement woes

[Donno]

Hi all

This may or may not be in the correct forum, but after reading all of the advice etc. in this forum, I think it may be worthwhile telling.

I have a problem with an easement that is situated on my house block. I do not have a garage or car port so I wanted to build a carport attached to the side of my house. The house previously had a carport on the other side of the house which has been filled in and is now the main bedroom. Upon purchasing the house some years ago I was not aware of the easement (stormwater) and did a lot of landscaping on the block until we decided to build the carport. Agent at the time failed to mention the easement or I would have had second thuoughts about purchasing it.

A check with the council re the car port proved quite a shock as they tell me I have an easement which is starts at a front corner of the block and actually is under a corner of my house (which explains movement and the cracked bricks) where I want to attach the car port and have denied approval.

Now I have a house which the original builder (1982) was obviously given approval to actually build on the easement, but I am not allowed to build a car port attached to the same wall that is already on top of the easement. I also feell that I am going to have problems selling the place when the time comes. There is no room to build a free standing car port.

Can anyone tell me what recourse I have open to me if anything. :confused:

Thanks in advance.

Mingara

[bitingmidge]

Don't blame the agent, he's not necessarily an expert in titling.

First step would be to engage your conveyancing solicitor in a little friendly banter, or perhaps a deep and meaningful discussion about the depth of his professional indemnity insurance.....

You did use a solicitor didn't you??

You didn't save money by doing your conveyancing yourself I assume. I don't want to have a go at you, just sound a warning for anyone tempted to save a few hundred dollars when making the biggest purchase of their life.

If you didn't pay for (and receive) professional help, then the best place to look for assistance is in a mirror!

If your solicitor did not advise of the presence of the easement, then I suspect that there is a small degree of culpability, enough to at least get some free advice from him as to the best course of action.

On the other hand, (and I've been laughed at before when I advise people to do this), even buying a straight forward house in suburbia, I always engage a surveyor to check the house is on the block and fences located more or less where they are supposed to be. Too late for you, but maybe someone reading this will take that advice and save themselves some grief.

Cheers,

P

[TEEJAY]

Your council should be able to advise you of your options as they have requirements in relation to encroaching upon an easement.

Two options are usually

If you are partially entering the easement you have to apply for approval and you can pier the structure such that should the service pipe (stormwater) need to be raised then the structure can self support with a dirty big hole next to it whilst they repair or replace the pipe.

Second option (way expensive) is sometimes to encase the line so it nevers needs to be dug up - but that is extreme.

Further you exisitng building should have piers along the wall at the edge or just within the easement.

Is there any possibility of the carport being elsewhere?

[thebuildingsurv]

Councils will often allow the construction of a lightweight strucure (non-habitable) over an easement providing that it doesnt interfere with the pipe in the easement. You will probably have to come up with a design that ensure the footings are a specified distance horizontally (accross) from the pipe location and you may have to increase the depth. Obtain the size of the pipe distance from fence etc and determine if it is possible to build.

If you have no luck, as a seperate issue you could always write a letter to the Councils CEO threatening legal action as the house was built over the easement when it shouldnt have been. You could also mention that inadequate footings where provided adjacent the easement thus cracking has occured. As no doubt this building should have been inspected (it would have in vic dunno about adelaide) you could have a case against the council.

You should check the title when buying a property, a REA is trying to sell the property not scare you away from it.

have you read the guidlines for your councils building over easements and have you made a formal application.

cheers

TBS

[bitingmidge]

Sorry about all of the above, it's just a bit ugly isn't it?

As thebuildingsurv said, sometimes, particularly with just a carport, you may be able to get approval.. good luck. (It may be something that conveyancing solicitor can "help" you with?)

cheers,

P

[Sturdee]

Sorry about all of the above, it's just a bit ugly isn't it?

P

Actually I thought that was correct advice. Not nice but realistic.

Firstly the agent is not acting for you and doesn't have to tell you about the easements, if any, for they are disclosed on the title and your diligent search, either through your solicitor or yourself, would have disclosed them.

Normally your solicitor and/or your lender would have sent you a copy of the search and asked you to verify the measurements and distances from the nearest corner to ensure that the block you are purchasing is actually what is described on the title.

A proper survey would be better as many years ago when I worked in a bank we rejected 3 loan applications on the grounds that the house was not built within the title boundaries.

Finally if you do get approval to build over the easement please bear in mind that if any authority, not only the council, want to do work in the easement they will demolish whatever you have built at your expense and will not reinstate anything. That will be a condition of your approval.

Peter.

[ausdesign]

Greetings Donno. In addition to all that was said above, the council does require a good reason to stop you building across an easement.
In many cases a phone enquiry will result in the advise being negative and most times you will be advised to submit your proposal to the planning department which is going to cost - without any guarantees.

In regards to the house footings I would be asking the building department for a copy of the original endorsed plans together with a copy of the inspections carried out and a copy of the certificate of occupancy.
Any plans submitted for approval would have been accompanied by a 'certificate of title' which would show any easements and should have been picked up by the building department when issuing the permit.
If the footing is failing due to fill in the easement then there is possibly recourse on the building inspector but more so on the builder, who as has been seen by previous lawsuites is often liable for the performance of the footings even after the 2nd 3rd or even 4th home owner.
If the cracking warrents it i'd be making inquiries.

[Donno]

Thanks to those who responded to my post of easement woes. The information you guys provided has given me food for thought and has caused me to think a little more laterally.

I did not engage a solicitor when I purchased my house as SA does not require a purchaser to retain a solicitor. We have what is known as Conveyancers and I guess they do the same thing. However I cannot recall (after 18 years though) if we received any documentation which included a site plan which shows the easement. If I did, I don't know what happened to it and; I guess in hindsight, yes I should have done a better search, but was not aware of the pitfalls of buying a house then.

I went to the Council seeking original plans, including site plans, for the house etc and was told there was no plans available as the council did not keep plans at that time. (The original builder has since died and according to his son who took over the business there are no plans for the house). I submitted a hand drawn plan of the proposed car port at the Councils request and was told after a couple of days that it was not worth submitting an official plan as it would be a waste of money.

I asked to speak to someone in Council from that area and spoke with a person later by phone as there was no-one available at the time of my visit. After he said the carport could not be built as it was a 'substantial structure', I asked him to come out to the house (5K travel) to discuss what I could do to build a carport which would fit the criteria of Council that may not be a substantial structure. I told him the house was already built on the easement as I had learned from the council earlier. He refused to meet with me saying he had already been there. I had no knowledge of him having visited my premises.

In relation to the portion of the house that is over the easement I would say that the easement is the cause of the cracks in the brickwork as there are no other cracks any where else. I guess though it would difficult to prove the cracks were actually caused by the easement though at least on my sayso.

At this stage I am contemplating seeking some sort of legal advice, as suggested in earlier posts, as to whether it would be worthwhile pursuing the Council over the damage caused by the easement. Can anyone advise me of any organisation that I would need to contact to have a look at the damage to determine if the easement would have caused the damage.

Incidentally the carport I wanted to build was a colourbond steel one and would have, in my opinion, been articulate enough to withstand a lot more movement than a brick veneer house.

Anyway thanks guys

Donno

[Donno]

Just a a closure to my original post on this issue.

I have ended up selling my house after about six weeks on the market (after I recevied some input about my concerns about the easement) on this site. Yes the person that bought my house had a building and termite inspection carried out and there was no problem. They have been made aware of the easement and do not want to encroach upon it so I guess it has worked out in the end. Mind you I am glad to be getting out of my current Council Area as I have purchased another house about 20 Ks away.

Thanks again for your input and I will no doubt be seeking more answers in the near future hopefully about simple building matters as I intent to extend my new house.

Donno