Ask a real estate pro: House encroaches on utility easement — is this a problem?
Owner of Gibraltar Title, Board-certified real estate lawyer Gary M. Singer writes about the housing market in the Sun Sentinel each Monday.
Q: My house was built 2 feet into the utility easements. There is a utility pole with electric transmission wires 3 feet from the back of my house. If the pole should need to be replaced, would the utility company be able to place it in the same spot? — William
A: Yes, and you might have some other concerns. An easement is a legal term for when one landowner gives another party, often a utility company, the right to enter or use a portion of the property for a specific purpose. Common easements are for water pipes and electric poles. Most easements “run with the land,” meaning that the easement will pass from one property owner to the next, and many people don’t even realize they have easements crisscrossing their yard. In fact, the easement you are dealing with was probably granted several owners ago, before your house was even built.
When part of a structure that is built on your land crosses an easement, it is called an encroachment because the structure is encroaching on the easement holder’s rights. Because easement holders have the right to use the space for their specific purpose, such as running power lines, they are able to enforce their right by making you remove the encroaching structure.
Usually, this is not that big of a deal — for example, if a fence or the corner of your pool deck is the encroaching structure. But because part of your house is doing the encroaching, this could be a big problem for you.
The first thing to do is to make sure there really is an encroachment, and that it isn’t a surveying mistake or an easement that was adjusted or removed when the house was built years ago. If the encroachment still exists, check your title insurance policy, since it will cover the cost of repairing an encroachment that was not found at the time you bought your home.
Be aware, though, those encroachments are often found before closing, and excited homeowners waive coverage because they are eager to close and don’t anticipate an issue, so your title policy may have a stated exception for this. If this is your case, and there is no coverage, you will need to try your best to try to work things out with the utility company. In my experience, the company will try its best to work with you on the issue. But in the end, if it can’t be worked out, the power must run through.
You should look to your community documents to see which specific guidelines you need to follow. As mentioned above, all of the rules must be reasonable. In your case, making owners wait to address agenda items until after voting is over is neither reasonable nor within the law, since it seems to defeat the very purpose of the rules.
If you have any questions you would like to see Gary answer, please email him at firstname.lastname@example.org
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