This was originally posted in 2015.
My good friend Kris and his lovely fiancé Dena are in the process of buying a house. Kris has helped me work on my motorcycles and trucks more times than I can count. He’s one of those good guys who will help you out without ever asking for anything in return, and for years, I’ve been looking for a way to partially repay his kindness.
Once I heard he was buying a house, I finally knew I had a way I could help him and his fiancé. I offered to lend him my 20-plus years of experience as an urban planner and city department head. I’ve seen hundreds of ways in which things can go horribly wrong in real estate. I should mention that Kris is a quite competent real estate lawyer working for a state association. However, I’ve seen things from a perspective I didn’t think Kris’s work offered him. So, I hoped I could be of some assistance by (1) walking the property with him, (2) looking over his home inspection report, and (3) running through every disaster I could think of that might occur with his new home.
The advice I gave to Kris might also help when you’re buying your next home:
Get Your Lot Surveyed and Pinned
My first suggestion was for Kris to get the lot surveyed and pinned. When licensed surveyors pin a property, they determine the locations of the corners of the lot and then drive foot-long sections of thick rebar into the ground at the exact corners. They place plastic caps on those pins to identify their surveying firm or license. Next to each pin, the surveyors typically place a wooden stake that sticks up a few feet above the ground. They top the stakes with a little bit of fluorescent surveyors tape.
Once the corners are pinned and staked, the soon-to-be owner can easily see if there is an encroachment on his or her property by a neighboring property and, even more ominous, whether the property he or she is about to buy is encroaching onto a neighbor’s property. Encroachments can bring up all kinds of nasty issues, one of which is termed adverse possession. We’ll skip that topic in this post because it is so vast and can be quite complex.
The good news was that Kris and Dena’s potential new home was situated properly, and the only issue revealed by pinning was that a fence on one side of their property might have had a bit of wander to it. At one end, the fence appeared to be about six inches onto the property under consideration, and at the other end, it might well have been six inches onto the neighbor’s property. You must use your best judgment in such a situation.
Decide How to Work with Your Neighbors on Encroachment Issues
There is a considerable body of law concerning fences. Further, there are some very strongly held opinions about what is right and what is wrong when dealing with a fence that is not exactly on the property line. One of the things they don’t formally teach in law schools, however, is how to get along with your neighbor. Sometimes, if the fence isn’t exactly on the property line, it will become an issue only if you make it one. I think Kris and Dena confronted such a case.
Telling a brand-new neighbor to move his fence off your property is not normally how you should start a relationship. My advice to Kris was to leave it alone. The fence looked like it only had a few more years of life left, so the best path was to talk with the neighbor when it eventually fell. At that point, Kris could remind the neighbor that he had conducted the survey and they could jointly agree to put the new fence on the property line. Ninety-nine times out of 100, this is the best solution.
Determine How Easements Affect Your Property
One of the next things I was able to do for Kris was to figure out the easements on the property. I located a digital copy of the subdivision plat. The good people at the Boone County Recorder of Deeds provided a PDF of the plat—for free. I turned that document into a JPEG and overlaid it onto an aerial photo on Google Earth. That graphic is below. It showed us how much of the property was dedicated to drainage and utility easements. They covered a significant portion of the lot. That much coverage was not a deal-breaker in my mind; however, one needs to be cognizant of the fact that you can never build permanent structures within those easements.
Also, the city or sewer district or whoever owns the easement can come in and dig it up anytime they want. They are not even obligated to be nice to you in the process. So, if you can live with the remaining area of the lot that’s available to you for building or putting on an addition to the home, it shouldn’t be a problem. If you need the entire lot, it might be best to walk away.
Check Drainage and Consider Sewer Backup Insurance
A plat gives you a good idea of sewer and drainage issues, but nothing beats literally getting the lay of the land by walking your entire lot. Kris and I did that. We saw a large sewer manhole in an area that might have been close to, or within, the property’s boundary. Sewers typically run along natural drainage areas (the lowest areas). Plus, Kris’ potential property backed up on a creek. The proximity and elevations of the manhole and creek signaled potential drainage problems, and I discussed ways Kris and Dena could protect themselves.
Advice from the Very Wise MikeM
One of the wisest men I ever worked with was a city engineer. Every time it rained hard, I saw the guy head out of his office wearing his galoshes and his rain gear. I went with him on several of these outings. He told me that the best time to check your drainage control infrastructure is during a heavy rainfall that follows a long period of rain. Only once the ground is truly saturated can you begin to see how water flows on the property under the worst-case scenario.
During the inspection that Kris and I made, the weather wasn’t quite that bad, but it did allow us to see how the property drained. I expressed concern that the city sewer was so close to his property—in both and distance and elevation. I suggested that he consider purchasing sewer backup insurance of at least $50,000. As a city employee, I’ve been at several meetings where we were confronted by citizens whose homes had been flooded by raw sewage—most likely due to a backup in the city sewer line—or an especially heavy rainfall where the storm sewers overflowed into the sanitary sewers. The city officials often did everything they could to avoid taking responsibility. At those meetings, I heard the term “act of God” invoked by the city more than once. Now that’s not the way it ought to be, but often it’s just the way it is.
If flooding happens, it may be months before you get a check even if the city does take responsibility. So, I think it’s wise that anyone in Kris and Dena’s position has sewer backup coverage written into his or her homeowner’s insurance policy. Also, plan on being relocated for the 30 to 60 days it’s going to take your remediation contractor to tear out all the flooring, wallboard, wood trim, appliances, and electrical that were damaged in the sewer overflow. Please make sure you also have temporary relocation coverage in your homeowner’s insurance policy.
I wish Kris and Dena well. I hope I haven’t ruined the joy that comes from buying their first home.
*I won’t give you a lecture about how overlaying a scanned PDF onto an aerial photo really messes up any hope of precision. Accuracy is especially problematic when the PDF was created from an old paper document, which itself may have been a copy of another document. And it is made of paper and thus subject to expansion and contraction related to the humidity and temperature levels at the time of scanning. And well before the time of scanning when it was originally drawn on a flat plane by the surveyor (and with said surveyor not using geodetic math, coordinates, or a geodetic projection).
I won’t go on and on about how the act of draping that image onto an aerial photo (which itself has been roughly “projected” onto the surface of a sphere) really messes up precise accuracy. Nope, I’m not going to confuse you with those issues. But I will tell you that the image I created tells you what you need to know about how much of the parcel is buildable.
Also, remember this image was taken by a camera in the belly of a business jet. The airplane was located to the southeast of the home site when it took this photo, so all above-ground structures lean to the northwest in this photo. That may make them appear to cross property lines. However, the intersection of where the homes meet the ground is generally accurate.
One last note. This article shouldn’t be considered legal advice because everyone’s situation is different.
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