Browse Forums Building A New House 1 Feb 07, 2012 10:56 pm Hi I was hoping that someone may have some knowledge about unregistered easements containing sewers as I have found it quite hard to find any detailed information on this topic. We bought a vacant block of land in Melbourne's inner west in mid 2010. The title shows that it was part of a larger property that was subdivided. We are shown as Lot 2 and what we bought was essentially the backyard of another property shown on the title as Lot 1. Our property has frontage on a laneway and the title shows an easement across the lane frontage of our property in favour of the council, but no other easements. The party we bought the land from was responsible for subdividing the block and they also built a house on Lot 1, which has been sold to our current neighbours. We are using a volume builder but I have prepared all the town planning docs and we have recently been granted a notice of decision to grant a planning permit from council. We thought everything was tracking well for us to start building at Easter, (coincidentally around the same time our first child is due, which is unrelated to the whole sewer issue but has meant I am a bit more stressed about the whole thing than maybe I would otherwise be). So today the builder sent me an email saying that there is an unregistered easement serving Lot 1 running straight down the middle of the property and connecting to the sewer that runs along the lane. This sewer is not shown on any document except the as-built drawing lodged by the water authority's plumber, presumably when the people we bought the land off built on Lot 1. The builders advice is to contact the Plumbing Industry Commission to obtain permission to relocate the sewer. This seems to be something that we have to do to progress our project. I have looked into building over the sewer but that seems to be a no go also and something i doubt the builder would consider. I have a few questions: 1. who is liable to pay for the unregistered sewer relocation? (I am assuming it's us but am hopeful there may be another solution!) 2. Why do i need to care about this sewer? It's not my sewer, it's not on the title, there's no easement for it and what's it doing on my land? can't I just dig it up? (I realise it's not that simple but it is how I feel and i am wondering where i legally stand with unregistered easements and is it actually an unregistered easement - surely something more than a barely legible pencil sketch on an as-built is required?) 3. what recourse, if any, do we have against the previous owner and their duty of disclosure, given: - we have the water authority as-built that our builder obtained from the authority's plumber that was prepared for the previous owners when they built on Lot 1 - has their name, telephone number etc on it so they can hardly claim they never knew, but the sewer was never identified in the contract of sale. - Despite the above document the Vendor statement states the vendor is not aware of any restrictions (easements or similar restrictions etc) with exception for the other easement we knew about in favour of council. - the contract of sale also included an information statement & certificate from the water authority that does not identify the sewer down the middle of the site (not sure if it even should?). 4. So no-one else goes through this grief what specific check should people buying land do to avoid this problem? - we really felt like we did our due diligence on this before we purchased. There is nothing on the title, nothing on any Dial Before You Dig info, we had a solicitor provide advice on the certificate of title, we had town planning advice, we talked to the council and even going through town planning hasn't dredged this info up, we had the information statement and certificate and encumbrance plan provided by the water authority which showed nothing.... This sewer line has only been identified when the water authority's plumber was contacted by our builder - it would never have occurred to me to go to such a level of detail to uncover this information but is that what future land buyers should be doing to safeguard themselves? It would appear so to me!! Our conveyancer (whilst generally giving the impression that they were covering their own backsides) has suggested we may have recourse against the vendor, but that legal action would be expensive. They didn't really have any answers as to what specific check we should have done as part of our due diligence in buying the block but admitted that we had done what most people would do when purchasing a block of land and that the situation we have found ourselves in is a rare occurrence. I really feel we paid too much for a block of land that has a dirty big sewer running down the middle of it and i am not looking forward to finding out the cost of running 30m of new sewer line on our own property of absolutely no benefit to us - if you have had any experience in this then any advice would be greatly appreciated. Thanks unregistered easement (sewer) 2Feb 08, 2012 6:43 am Is it actually there or only a "proposed" sewer? We had a proposed sewer line across our block where I wanted to situate our home. It had an easement covering it. Because it had never been actioned - in fact the home it was attached to had been sold a few times over - we approached the owners and had the easement extinguished. It did take time and a couple of thousand $ but it was better in the long run for us. Soy first query would be - is the sewer actually in existence or not? Some things are worth waiting for. Re: unregistered easement (sewer) 3Feb 08, 2012 7:16 am Thanks for the advice but unfortunately the sewer is there. The only reason we know about it is because of the as-built drawing, which by it's very definition doesn't get generated until something is physically built. We are intending to do a spot of digging to double check location and depth. Whilst it would be a pleasant surprise for the sewer not exist it's highly unlikely as it's showing up as the only sewer line for our neighbours property. Re: unregistered easement (sewer) 4Feb 08, 2012 8:15 am I'm assuming a few things here but: I would have thought that the location of the sewer would have been noted somewhere when (or for the approval of) the house on lot 1 prior to the build and subsequent subdivision. That being the case it would appear that the proper checks have not been completed prior to the purchase of your land - when I purchased an existing dwelling in NSW I can see the sewer locations of not only my property but every adjoining one even where they dont connect to the same line that I do. Not sure if this was in the contract as a matter of course or something that my sols requested in their searches. Again I'm not really experienced or knowledgable in these matters but to me it sounds like your conveyancer is trying to fob you off - I'd be getting a second opinion from another sol/conveyancer. http://camdenbuild.blogspot.com.au/ by invite only please pm me Re: unregistered easement (sewer) 5Feb 08, 2012 11:01 am robbie55 the proper checks have not been completed prior to the purchase of your land unfortunately, quite often the checks carried out cannot cover errors in plans or on the fly changes that have to be made where services are concerned. As for who is liable for the relocation OP, I think that would be you. Even with things like "dial before you dig" they have a disclaimer saying that the info they provide may not be 100% accurate and they don't take any responsibility. As for digging around it to see if its there. The sewer that runs to my house is 8 feet deep. You wont get to that depth with out an excavator or a lot of time. After reading all of your questions the only suggestion I can honestly offer is, either sell the block and choose whether you disclose the sewer location or not (you shouldn't have to as it probably falls under the Buyer beware clause) or decide to go through with the build no matter what and try to get some compensation by approaching the solicitor who drew up the documents of sale when you bought the land. It won't be on the owner but the solicitor who drew up the section 32 (or NSW equivalent) IMO. Re: unregistered easement (sewer) 6Feb 09, 2012 12:35 pm Bugger! A very unfortunate situation even after what sounds like thorough due-diligence on your part! Phone your local council and request a copy of the subdivision consent. It should have had a condition of consent requiring an easement to be registered over your allotment. If not I would find out what information was actually submitted to Council on the proposed subdivision plan. Most subdivisions require stormwater and sanitary sewer connections shown to all new allotments (including allotments with existing dwellings). The original subdivision plan should have shown this pipeline which shows Council where the existing dwelling is draining it's waste to. I have no idea of the rules in your local district plan but usually you can't create a vacant allotment with an easement which would leave no room for a dwelling. Often, a minimum 'shape factor' (say 15m x 15m) needs to be shown on the proposed allotment(s) which is OUTSIDE of easements and side/rear yard requirements proving to Council that the land is usable (ie. can be built upon). The apparent omission of this easement definitely sounds like an error on the vendor's part, through the creation of the subdivision. As you solicitor advises however, legal recourse is probably going to be expensive and lengthy. It would probably be worth getting your solicitor's to contact (threaten) them though (with the facts/proof) to see if they will do anything on their own accord. In terms of physical action I can only see two possibilities: 1. The sewer is relocated so you can build and a new easement is registered in favour of your neighbours. 2. If the building code/council building regulations allow, the existing pipe may be able to be built over with a modified house slab or piers bridging the existing pipe. An easement would still be required however it may be able to be 'height restricted' to below the new house but above the actual pipe itself (the easement will actually go under your new house). The existing pipe would first need to be located on the ground using CCTV and it's location and depth recorded by a land surveyor to position the easement. Another requirement if it is able to be built over, is that the pipe is 'sleeved' within another pipe, meaning that if future repairs are required it can be removed easily (without moving the house above it). This would require the pipe to be dug up and modified first. Depending on the ground cover there may be no requirement for pipe protection (the modified slab or piers as mentioned above) In either case, an easement plan needs to be prepared covering the existing or relocated pipe in favour of your neighbours. Re: unregistered easement (sewer) 7Feb 10, 2012 7:17 am Thanks atagnat I think you're right. We have the planning permit and building permit and stamped drawings which I have revisited. No info on them. If we go back a step further to the subdivision then maybe we'll find something. We have a copy of the plan of subdivision but it shows two clear blocks, with the exception of the easement we already know about so it will be interesting to see what we find! I'll post an update when I have done a bit more digging - physically and with council docs! We got confirmation from lawyer that we have a case against vendor or possibly vendor and real estate agent but the costs are exy. I am going to concentrate on the physical pipe issue because our situation gets worse as if we don't resolve it soon, we can't give the contract and updated costs to move the sewer to get our loan upped to our mortgage broker before I go on maternity leave (ie. When I am still getting payslips) so the build will be put on hold for at least 12 months til I'm back at work (this seems the likely scenario but whilst there is glimmer of hope we're going to push ahead). If we can't get things resolved in time then we are definitely going the lawyer route as we will have our deposit for the build available to lawyer up. Re: unregistered easement (sewer) 8Feb 10, 2012 1:04 pm darlacat Hi So today the builder sent me an email saying that there is an unregistered easement serving Lot 1 running straight down the middle of the property and connecting to the sewer that runs along the lane. This sewer is not shown on any document except the as-built drawing lodged by the water authority's plumber, presumably when the people we bought the land off built on Lot 1. I'm so sorry to read about your dilemma. This is probably one of the worst case scenarios that can happen to anyone building a house. I'm not sure if I'm any help on this, but I just wanted to mention something that might shine some light on what could have happened here. Our build has just started and the plumbers came out a couple of weeks ago to lay and connect the sewer pipes. When I went to the house to see what was happening, I saw that the plumbers had run the pipes diagonally across the "empty" part of our block to the sewer connection in the back corner of our block. This was done despite the site works plans clearly showing that the sewer pipes should have run straight back to the rear boundary and then along the boundary to the sewer connection! When I questioned this, the construction manager of our builder told me that "The plumbers don't always stick to the site work plans. They look at the situation on the block and then lay their pipes the way they think is best." This was despite me specifically asking for the pipes to be laid the way they were eventually put on the site works plan. So after some discussion the plumbers now have to come back and relocate the pipes. What that means for your problem is that the plans that were submitted to council and that you have seen may well be how this was INTENDED to be done. However, the plumber that has laid the pipes may well have thought that going straight across is a much easier way to connect the sewer and so he did it that way. This means that in the end, the pipes would not show up on any of the subdivision plans, permits and drawings. But the "as-built drawings" of the plumber would show it, because that's how he did it. This would have been the situation in our case. All of our builder plans, the council approvals and everything show the sewer pipes running to the back and then along the boundary. The as-built drawing of the plumbers however, show the sewer pipes running diagonally across. But none of the other plans would have been corrected, so the discrepancy would be there and very hard to uncover! Where that leaves you, I don't know. The question would be if you can prove this and if that means the plumber is liable? Might be a stretch, but at least this could provide for some explanation as to why the sewer pipes are on no other document than the as-built drawings of the plumber. Good luck with resolving the issue. I hope you get a satisfactory outcome. Thread: viewtopic.php?f=31&t=52680 SiteStart 19/11/11 Slab 10/12/11 Frame 17/02/12 Roof 3/05/12 LockUp 22/06/12 Handover 31/08/12 Re: unregistered easement (sewer) 9Feb 10, 2012 2:35 pm Thalian - it is quite possible that things happened as you detailed. As for the plumber being liable, I think it's a long shot. The developer (or whoever was managing the works), is ultimately responsible for ensuring that the pipe is built where they want it. The surveyor who prepared the survey (subdivision) plan however, should have physically located the pipeline in order to create the easement in the correct position. The subdivision plan is prepared by the surveyor, which is then processed in conjunction with the legal instruments prepared by a solicitor to create the easement on the new allotment (which has not been done in this case). The only 'out' I can see for the surveyor is if he/she was not advised of the location of the pipe or its existence, in which case blame ****** with the developer. Plumbers do provide an 'asbuilt' plan after they construct underground pipes for private works, however this is usually a rough scaled drawing with no reference to anything but possibly existing dwellings. Even if the surveyor was provided with an asbuilt plan from the plumber, it is not adequate to create an easement from - it requires the surveyor to actually measure the physical location of the pipe. Darlacat - if professional incompetence can be proven, then you could sue for a lot more than just the costs of the new easement plan or construction costs of relocating the pipeline. (From what I understand) you performed all possible due diligence on the vacant allotment. To suddenly have an easement ANYWHERE on your lot, means that your title is now encumbered and the value of the vacant allotment was misrepresented to you at time of purchase (as having no easement). I would claim for the loss of value that your lot will now have. If the new easement is able to be run under the house, then this will be a significant amount as no one desires an allotment with an easement running through the centre of it. Re: unregistered easement (sewer) 10Feb 11, 2012 5:04 pm Thanks guys. We have dug and found the pipe about a 1.2m below ground and about two meters away from where it is shown on the as-built. Our neighbours helped and one of them was an amazing hole digger!! I think they thought we were digging a grave at first. Now that we have found the pipe/confirmed its existence, we will work out what's involved to relocate. I will feel much more comfortable with the pipe going around our building than under it. I agree, if we resell, a pipe under the house is not a great selling point, and believing in karma it is something we would disclose, so it would effect our price. To further assist with the decision to relocate, our project home builder won't even consider building over the pipe. We're weighing up the whole legal side of things. Re: unregistered easement (sewer) 11Feb 17, 2014 7:02 pm This won't help the OP, but it may help other people. I am in the process of subdividing a block into 2 lots - a front and a rear lot. Services are only at the front of the block. Hence, I will have to lay pipes for stormwater, gas, drinking water, sewerage for the rear lot, across the front lot. These pipes need an easement on the front block, to prevent the pipes being built over and rendered inaccessible. I read up on the subdivisions act of Victoria. You can get the latest revision here: http://www.dpcd.vic.gov.au/planning/the ... egulations Easements are discussed in point 12. From my reading, it appears that there are a number of types of easements available: Specific 12(1) and Implied 12(2) [possibly more?]. The subdivision plan for the lot will specify whether it is 12(1) or 12(2). This specification depends on the conditions imposed on the subdivision by the service providers to the property. For instance, Yarra Valley Water imposed a 12(2) easement on the front property, in favour of the rear property, to run sewerage pipes to the rear property. This is a condition for the subdivision. I think (and you should check with your surveyor) that the difference between a Specific 12(1) and Implied 12(2) Easement, is that the 12(1) easement location is specified on the title, and an 12(2) applies to "all the land on a plan of subdivision of a building". A 12(2) easement allows you to route the services anywhere in the title. Thus, if you are planning on building, you should check the title for any 12(2) easements on the plan of subdivision. Feel free to correct me if I am wrong. 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 17214 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 16185 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 3413 |