Browse Forums General Discussion 1 Mar 15, 2010 10:11 pm Hi all, I may have a problem, signed an offer and acceptance on a block of land with all the special conditions noted and initialled by all partie's--ie vendors agent and vendor and purchaser (us) All finance has been approved, deposits paid and now we are approaching settlement, I have just received a copy of title document from the settlement agents with their expected costs etc., which show an encumbrance is present on the property i.e. a 2.5m water corporation sewerage easement running along the entire rear of the block, this easement or burden if you like on the property was never noted on the offer and acceptance we signed, only now becoming apparent as settlement approaches, what is the procedure to follow with an undisclosed easement by the vendor and his agent, surely the agent must have investigated the title and and any special conditions when listing the land for sale. Any help would be appreciated from someone who has had any similar experience with this. Re: Undisclosed easement when purchasing block of land 2Mar 15, 2010 10:22 pm On our property contract, the site plan with easement details were signed off by the purchaser as a matter of disclosure. Sometimes easements can be relinquished though, but remain on the title registered at the titles office. They are two different processes, so maybe the latter hasn't been updated. I'd make a quick call to the watercorp and see whether that to be the case, if the easement is active then I beleive you have grounds to open contract negotiations. Re: Undisclosed easement when purchasing block of land 3Mar 15, 2010 10:34 pm Hi Happyhome, This easement is current since issue of titles some 5 years ago, as it also supplies the next doors deep sewerage connection and extends into his land about two metres also(which would be his sewerage connection point , as we have to construct masonry boundary walls as per the estates covenants, the footings required may impinge on the distance required away from the sewage pipe (we don't know how deep this pipe is) Re: Undisclosed easement when purchasing block of land 4Mar 16, 2010 7:00 am I don't know what state you're in, but you should have been given a copy of the title along with other relevant documents and info before signing. In Victoria, I'm pretty sure it forms part of the Section 32 Vendor's statement. I remember we had to provide a copy of title to the real estate agent when we were selling.... Is the easement likely to cause you problems? Usually those type of easements run along the rear boundary (or sometimes one side boundary), so don't interfere with building plans. We've had sewer easements on both our properties and have never had any issues. Re: Undisclosed easement when purchasing block of land 5Mar 16, 2010 7:01 am Easements aren't as scary as we think, and depending on the block size might have no impact on the build itself. It might impact any plans for a pool though. We just have a colorbond fence on our property where the easement ******, the house itself has piles along the wall where it encroaches the easement. If there is some distance between the fence and the house then I would say that both the house probably wouldn't require any special footings/piles etc, and the fence would need to be constructed that it is easily removed, (which doesn't include deep footings etc) obviously there is the chance of the WaterCorp knocking down the masonary fence to gain access at some point. But checkwith the WaterCorp about what fencing is allowed on an easement, afterall they must be the ones you have to appease. What does your solicitor recommend doing? I'd be inclined to advise them of this non disclosore and seek a $10K adjustment on the price. Re: Undisclosed easement when purchasing block of land 7Mar 16, 2010 4:57 pm Hi Tempura, That isn't a dumb question at all. We bought a block of land with a 3m easment at the back. It just means we cant build a permanent structure on top of it. Apart from that it doesn't affect us. So you could ask if there are any easments on a block although it should be disclosed at the outset. It should have been shown on the documentation saxien. You should have had to initial a plan of the block that would have shown if there are any easments (which are always shown on official plans). I guess the issue for you is will it affect what youre wanting to build. If it doesn't, I wouldn't worry about it too much except I'd be asking some very pointed questions to agents and conveyancers. If it is going to affect what you build I'd be seeking advice from a solicitor. Handover February 2011 Happy with our home Re: Undisclosed easement when purchasing block of land 8Mar 16, 2010 6:07 pm Hi robinred, When the offer and acceptance was signed there was only a memorial clause disclosed on it (mosquitos), no mention of an easement whatsoever, there were no title details presented to us at the time, only the estate layout showing the block plan, the worry is that 1.8m high masonry dividing walls have to be built as part of the covenants of this estate, in the meantime I have forwarded the surveyors plan of the block showing the building dimensions and a sketch of the proposed walls, the estate agent has admitted he "MISSED" the easement--how is that possible?, he must have sighted title to get those said memorial details in the first place, the first time we sighted title conditions is when the settlement agent presented their disbursments the main issue is can the limestone walls be built without expensive concrete footing works having to be done and any future provisions for possible replacement of brickpaving etc. Have booked a consultation with a solicitor, as any verbal agreements will probably mean nothing after settlement Re: Undisclosed easement when purchasing block of land 9Mar 16, 2010 6:30 pm Saxien, You have a definite reason to seek redress. To being with, it sounds like you weren't given the official plan of the block. If you bought it from a developer this is worse since they would know this. The fact that it wasn't disclosed at all is amazing. Surely the estate cant make you build walls that would be in breach of the easement. Or can they? Hope you can sort it out. Handover February 2011 Happy with our home Re: Undisclosed easement when purchasing block of land 10Mar 16, 2010 7:21 pm saxien Hi all, I may have a problem, signed an offer and acceptance on a block of land with all the special conditions noted and initialled by all partie's--ie vendors agent and vendor and purchaser (us) All finance has been approved, deposits paid and now we are approaching settlement, I have just received a copy of title document from the settlement agents with their expected costs etc., which show an encumbrance is present on the property i.e. a 2.5m water corporation sewerage easement running along the entire rear of the block, this easement or burden if you like on the property was never noted on the offer and acceptance we signed, only now becoming apparent as settlement approaches, what is the procedure to follow with an undisclosed easement by the vendor and his agent, surely the agent must have investigated the title and and any special conditions when listing the land for sale. Any help would be appreciated from someone who has had any similar experience with this. We have exactly the same issue and the easement IS effecting our build... we were never made aware of an easement in the land next do to ours - now when our builders have come back with site costs - they have advised us that we need concrete piers to one side of the house due to this easement. We do not believe this is fair that we have to pay for the piers when we were never made aware of the easement at time of sale, contract etc ... what can we do/where do we go to get the developer to potentially pay for the concrete piers??? Sleven Moved into our Atlantique MkII 36 by Carlisle Homes Re: Undisclosed easement when purchasing block of land 11Mar 16, 2010 9:32 pm robinred55 Saxien, You have a definite reason to seek redress. To being with, it sounds like you weren't given the official plan of the block. If you bought it from a developer this is worse since they would know this. The fact that it wasn't disclosed at all is amazing. Surely the estate cant make you build walls that would be in breach of the easement. Or can they? Hope you can sort it out. I do too, but the phone has gone very quiet from their end suddenly, looks like they are hoping we walk away (we are going to be allowed to apparently with all costs including the building plans etc being reimbursed), this won't happen, we are going to complete our legal obligations and proceed to settlement, as we have at all times acted in good faith, I have now engaged an independent solicitor to protect our interests as settlement is due in three weeks, I have spent weeks organising things, I even have the building contract ready to sign, there will be no cheap out for these people, present and future disturbance and extra costs compensation will be applied for. What a mess-and not of our doing Re: Undisclosed easement when purchasing block of land 13Mar 17, 2010 11:32 am is there any land on which there will be no easement? making it the easiest to build because there's no restriction whatsoever. i presume those kind of blocks will be at a higher price compared to the others. Re: Undisclosed easement when purchasing block of land 14Mar 17, 2010 4:02 pm If you employ a settlement agent to settle your property, it usually falls under their obligations to perform a due dilligence on the property (to get all the easements and other limitations on the title). If it was their obligation to perform due dilligence and they had not, they are liable and you will have to sue them (claiming damages for not being able to build on the easement land etc). you usually have some sort of conditions of sale attached to the sale contract and you should refer to those to see if perhaps you have a right to claim damages or a right to rescind (cancel) the contract. This however will always be subject to some timelines. I am afraid you will need a legal advice if you feel that you will be greatly affected by the easement. But in general, the seller who did not disclose something when the buyer inquired, the seller will be in breach of the contract. "The fearless are merely fearless. People who act in spite of their fear are truly brave" - James A. LaFond-Lewis Re: Undisclosed easement when purchasing block of land 15Mar 19, 2010 12:55 pm is there any land on which there will be no easement? making it the easiest to build because there's no restriction whatsoever. i presume those kind of blocks will be at a higher price compared to the others. Re: Undisclosed easement when purchasing block of land 16Mar 19, 2010 1:40 pm Yes, there are blocks with no easements, but as you say, they may be priced a bit higher than those with.... In my street, the houses on our side of the road all have a sewer easement along the rear boundary. Those on the other side don't, but a few have drainage or other easements along their side boundaries. The developer should have all that info marked on their pretty coloured subdivision plans. Re: Undisclosed easement when purchasing block of land 17Mar 20, 2010 10:58 pm Went and seen a so called "solicitor"--I just threw away $50, the arrogant pig sat there reading the standard HIA contract form and told me in imperious tones half of what I already knew and told me not to interrupt him whilst he was reading the basic bog standard HIA contract form, and informed me of clause 2.9--the clown missed the other clauses 2.6, 2.7,2.8 , absolute turd of a man, what chance has the average Joe got?--none is what, there is no defining law in any agreement written--however many clauses applicable, only the large amount of money you are willing to commit to these parasites to make the offending party blink first. I should have known Re: Undisclosed easement when purchasing block of land 18Mar 21, 2010 9:31 am Saxien, why were you having a solicitor look over your building contract? I thought your issue was with the land purchase and the non-disclosure of the easement...? Or is there a separate issue with the building contract? I'm confused. The piering that your builder wants to do sounds like a fairly standard engineering requirement when there's a sewer easement close to the house. The rear edge of our slab is piered, because the back of our house is very close to the easement - only 100mm away at one point. We knew we had an easement there though, so we had no argument at all about the extra cost. It seems to me that your best bet is to see whether you have any legal grounds to insist that the vendor pay your extra site costs, since they failed to disclose the existence of the easement...? Or perhaps you're already doing that. Re: Undisclosed easement when purchasing block of land 19Mar 21, 2010 11:06 am Hi kek, Woops I didn't mean my building contract (the house is not affected, it's 2.2 metres from the easement boundary), I should have said the joint form for the sale of land, even confusing meself now, the issue is with the masonary walls required, as I'm running out of time going forward into settlement with no formal agreement for compensation for any extra costs with the estate agent yet (although he says we can work through it), I have submitted plans to water corp and am waiting for their reply, I can rescind the contract but have gone too far with building plans etc done, the solicitor was only going to draft a letter to the agent, but that will probably be a black hole of expenses going down that path. Re: Undisclosed easement when purchasing block of land 20Mar 21, 2010 12:08 pm Ah, OK.... thanks for clearing that up. I was so confused..... Good luck with it all - it sounds (in my inexpert opinion) like you have a good case, so I hope the agent or owner cough up for the extra expense. You should be able to encase the sewer but you will need it designed and approved and access to lot 580 to do the work 2 17168 You might be able to apply to divert the sewer at your expense. In NSW you would contact a Water services co-ordinator and they would give you advice as to whether or not… 1 16148 Thanks - yea sounds like I need to submit build over easement application....ugh guess I better start finding someone who can do the engineering drawings 3 3383 |