Reversing a Supposed Prescriptive Easement?

Question

We own an unimproved lot within the city limits that we are in the midst of entitling for commercial (office-warehouse). The issue is that there is a water line about 21 feet into the property, too close to our proposed buildings.

It turns out that by the language of the easement in the deed, both the water line and the easement are actually misplaced as the water line should only be 7 feet west of the right of way.

The reason for this discrepancy is that when the water line was put in place in the 1960s, the property owner then didn't cede a (~14 foot) right of way to TXDOT -- which means that the property line actually juts out into the road, relative to the lots immediately north and south of our lot (who did cede a right of way to TXDOT).

We'd like the local water supply company to pay for relocating the water line, and while they acknowledge the water line isn't where it should be, they claim a prescriptive easement indicates they have no responsibility to move it or pay to relocate it.

We've had an initial call with the local water supply and while they will let us address their board next week, at first pass, will not consider participating in paying for relocation.

Other than: call a RE attorney (which I already have) --- has anyone succesfully dealt withs such an issue? Any advice?

Jay Hinrichs · Answer

there ya go split the baby down the middle..  just musing but since the water line is not where its suppose to be what if you cap it off on both ends and simply remove it ??? :)  its trespassing.

Bill B. · Answer

I assume with 50 years of adverse possession the utility company would win most battles. GL.

Henry Clark · Answer

@aphorvath

Just some general thoughts:

1.  "too close to proposed buildings"?  Is that from a building and zoning department standpoint?

2.  What is your projects timeline?  If you plan to rent in 6 months, then a lawsuit won't work.

3.  How much will it cost you to fix this?  Say $20,000; $40,000; $60,000.  Although it will be added cost to your project, do the numbers still work for you?  Forget who is "Right".

4.  Did the prior owner or realtor know about this?  If so move forward.  But go back after them for financial restitution.

We had a similar situation, but we were in the middle of negotiations to buy still.  We were going to be required to have water.  There was a pre-existing Fire Hydrant on the property, but found out it was a private hydrant with the Apartment complex above us.  They used to own this property.  The city would not allow us to use it.  Plus the city requires all new developments to have water along the roadway, which this one did not.  We had to pay $130,000 for our part to bring the water line down.  Ask the seller for a $20,000 reduction in price.  I already had the price far, far below his original price.  He would have not sold if I asked for anywhere near the $130,000.  Took this as a learning experience, even though it cost me $110,000 more.  Our numbers still worked out great.

$110,000 fire hydrant.  The paint cost me $80 per gallon, for each color.  Special spec per the city.  As long as the numbers work, bite the bullet and keep on developing.  That is why developing has a higher potential profit margin.  Lot more risk.  I think I will buy a sign for Dogs, don't pee on my $110,160 fire hydrant.

AP Horvath · Answer

@Jay Hinrichs -- actually, once the water line is relocated -- that is exactly what will happen -- it will be cut and then a new line installed in the right spot. Obv if I did that without proper permissions, it wouldn't end well for me.

AP Horvath · Answer

Update on this -- my attorney is talking to the city attorney. We feel strongly that the current situation does not meet the five necessary elements to be deemed a prescriptive easement. While I have no appetite for a lawsuit --- neither does the city --- we are attempting to meet in the middle wrt cost of relocation -- which would be less expensive and less stressful for both parties.

AP Horvath · Answer

@Bill Brandt --- on the face of it, that seems to be the case. However, my RE attorney says that they likely do NOT meet the standard for adverse posession. If I recall correctly, there are a number of elements that all have to be met. But it looks like, short of legal action, even if I am in the right (ie the water line does not fall under a prescriptive easement), I don't have a lot of leverage. :(

Jay Hinrichs · Answer

I know my response was factious.  I am sure you would be in all sorts of trouble if you did that.  but you know sometimes we would like to.

AP Horvath · Answer

The interesting thing here is that if we had gone by the easement as it is written in the deed --- we would have not been able to locate it successfully. The only reason we ran into the water line is because our geotech accidentally drilled right into it (since it is near a proposed building). The water line didn't show up on our survey. So doing a utility locate as part of due diligence is key.

Henry Clark · Answer

Good discussion for everyone.  Add the following to your checklist

Have a utility locate done on the property as part of your due diligence.

Also do a survey.

Looks like a good Forum topic.  Due diligence. Have to see if there is already a good post out there.  Otherwise I’ll flip a coin with you on who writes.  At least yours cost less than my miss.

AP Horvath · Answer

@Henry ClarkThanks as always. 1) Yes, that is from P&Z. 2) & 3) -- I think the all-in cost to remedy would be $50k (which also means the cost is too low to justify a lawsuit) -- and the numbers still work. 4) I don't think they knew. The lot has been sitting unimproved for last 60 years. I already bought the lot a year -- at what now looks like a fantastic price for the local area.

Reversing a Supposed Prescriptive Easement?

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