Incorrect Easement !!

Discussion in 'Property Law Forum' started by Healss10, 1 December 2018.

  1. Healss10

    Healss10 Member

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    Hi, My name is Steve.

    I am in the process of buying a block of land. This block of land has an easement which I was aware of and signed for as part of the contract. Since signing the contract I have had my own survey conducted on the land (owner of land allowed me to carry out survey), and the results have come back saying that I cannot build up to the easement outlined in the contract UNLESS I add piling (reinforcement of the slab) which will cost me between $5,000-$10,000.

    I want to know;

    - Do I have grounds to terminate the contract?
    - Can I demand the seller or realestate agent pay for the piling as I want to build up to the easement I was aware of?
    - If the original survey conducted and submitted to landgate is incorrect (which it is), who's fault is that?

    Look forward to people sharing their knowledge on the topic!
     
  2. Tripe

    Tripe Well-Known Member

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    In general, it’s up to the purchaser to verify the true position of the land parcel and easments

    So you have done the correct thing engaging your Surveyor.


    Struggling to understand how an easment requires you to reinforce a slab and pile ground?


    You will need to look at the wording of your contract to decide if you can sue.
     
  3. Rob Legat - SBPL

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    It’s difficult to accurately answer your question without knowing what state you’re in. However, in general terms, if you were made aware of the easement at or prior to entering into the contract then you don’t have much recourse. A possibility may be if you stated to the agent/vendor that you had a particular need to build in the manner you’re suggesting and they gave you a representation which wasn’t truthful. However, that may not be enough to displace the requirement for you to make your own reasonable inquiries.

    As to the error in original survey, that would depend on how materially relevant the error may be and what possible disclaimers went with it. Also, whether the easement changed after the survey was done.

    You may have to just take it on the chin. If you’d done a soil test and found out the substrata was sand or similarly loose you might be in the same boat. The difference here is that you recieved notice that something may be of concern.
     
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  4. Healss10

    Healss10 Member

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    So basically the new property has an easement which I am aware of and signed for in the contract. But I can't build up to that easement because it would be too close to the sewer main (which was not disclosed, as nobody knew this until the most recent survey). The only way I can build up to the easement line is by adding reinforcement which will cost up to $10k.

    My argument is I want the contract fulfilled as I signed it. Which means the $10k needs to come from someone else.

    Am I wrong in thinking that?
     
  5. Healss10

    Healss10 Member

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  6. Rob Legat - SBPL

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    Re the sewer main: you might not have known what was within the easement, but you knew about it. Your solicitor/conveyancer should have investigated it and informed you. Since it's its registered on title, its purpose would have been capable of search.

    As for fulfilling the contract, you signed a contract to buy a block of land right? Unless you made it clear exactly what you wanted to do with it, and the seller or agent represented that you could, then it's doubtful you have any recourse against the seller. Just knowing you plan to build on the property is not enough. Or in other words, they are fulfilling the contract as you signed it.

    I'm sorry, but unless there's some other important circumstances you're not disclosing I don't see how anyone else can be liable for the extra cost.
     
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  7. Rod

    Rod Lawyer
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    I also can't see any fault here by anyone to make them liable for the cost you may incur.
     
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