Legal Question regarding Sewer

[Sean Barry]

I apologize in advance for the long post but I want everyone reading this to have the details. I have a turn of the century triplex in old town that is fully occupied.  My sewer line for this property exits out the back of the property, turns and runs for about 70 feet on my property and then runs across the back (and total width) of my neighbor's property before hitting the main located in the street.  My neighbor has informed me that he is going to be both expanding the footprint of his home and building a 3 car garage on the back of the property and will be breaking ground in about 5 weeks.  The garage portion of his build would partially go over my sewer line whose depth is about 4 feet for the section on his property.  He is building the garage as "slab on grade".  The owner before him installed a flagstone patio and immediately after we had a backup.  I had the line camera-ed at that time and located and the damage was directly under the newly installed patio.  Because I could not prove the damage was not there before I wasn't able to do anything.  The current owner is making all sorts of  statements, "because the line is damaged (I told him what had happened) the City will make me replace it (there is no evidence that they would) and therefore he shouldn't have to." I do not believe any actual easement exists but it is my understanding as the line has been there for a very long time (it is clay so I'm guessing 60 years or more I have either a prescriptive or implied easement).  I assume that if this line is not replaced prior to construction the construction will almost surely collapse or damage it and I do not think I am being alarmist or paranoid.  If it was damaged from the simple tamping of the dirt and install of a flagstone patio then a grader and concrete pouring will very probably collapse it.  The line definitely should be replaced in the portion where the construction is going to take place.  I want some opinions on who should pick up the cost on this.  From my view he is initiating the action that will threaten the line and therefore should pay for it.  If he doesn't replace the line and builds over it and it is damaged by him I am guessing he will need to pay for the repairs and possibly house my tenants for the time it takes to make the repairs.  Furthermore if he leaves the line and I need to repair it in the future I would have that right....something I would definitely not want done in my new garage and driveway.   I would like to hear some opinions on this and I thank you in advance for your constructive thoughts. 

[Justin Winn]

I’m curious about the construction permits required for your neighbor to build this garage. Isn’t the point of getting those permits for the city to identify problems like this and make the reenforcement of the sewer line a part of the scope of work to approve construction? I could see most cities missing this, but I would also assume if you voiced your concerns to the department approving the permits, then maybe they can take responsibility for telling your neighbor to upgrade the sewer. Unless your neighbor isn’t getting it permitted, then that’s a whole new issue.

I don’t really know what the answer is to your question. But it’s a unique situation, great question, and I hope someone else knows the answer.  

[Chris Seveney]

@Sean Barry

As another post mentioned I would comment to the county about the line.

As it relates to cost, I would negotiate with him to dig the hole and you pay the cost to replace the pipe. Why would I say that is probably what’s going through your head?

Reason being is the pipe is past it’s lifetime use, he is allowed enjoyment of his property and if Tamping the ground causes damage then their is an issue with the pipe. Normal construction should not damage underground utilities.

Put another way, if he does no work that pipe is going to go eventually and you will

Pick up the cost.

What if This would be have gone under his driveway and driving on his driveway damaged the pipe. That’s not his fault the pipe failed after 50+ years.

I am sure if he has an attorney they will say the same thing.

Best bet is to work something out with him but I wouldn’t expect him to pick up the entire cost

[Sergey A. Petrov]

You are on a shared line. You knew that when you bought the property. At that time, you should have either looked for a cost sharing agreement (likely does not exist), spent $10k+ in legal fees negotiating one and having recorded, or accepted it as is. You accepted it as is. Generally speaking unless there is something to the contrary you each pay 50% when something needs to be done regardless of who initiates it. I own one of those as well and accepted it as is instead of making it formal. The cost benefit analysis makes sense - you already know it is old and will need to be done and will be expensive so know you’ll likely have to pay soon. You can have attorneys negotiate but that doesn’t change the fact that you’ll still have to pay. Why not just pay half the repair price vs half the repair plus some legal fees to have it in writing that you’ll pay half. That was my thinking.

Consider this (I did and ultimately decided not to take that route) - abandon and cap the existing sewer line and run your own to the street. No more dealing with shared utilities…

[Henry T.]

I'll throw in my valueless opinion, and it may not even answer your question.  About 10 years ago I had an opportunity to buy a great investment property. I investigated the sewer line and found that before getting to the main street sewer, it ran under the neighbors property, and also under a huge cedar tree on his property. I knew with my luck that thing would probably collapse the day after I signed, so I got scared and backed out.

 All the info was there when you bought your place. Did you investigate? You know its clay and its days are numbered. Is it really fair to expect him to cough up the costs? He has an absolute right to improve his property. If it collapses your old pipe, I'd say awe that's too bad. I would still grant you the access to dig and install new, but I sure as heck would not feel responsible for it. 

After I backed out of my above property, I asked a plumber buddy of mine who does these things all the time. I was especially paranoid of having a neighbor that would refuse me access. (and there are lots of these kinds of people unfortunately), but my plumber buddy said "Oh no, you have that right, you get to do what you need to fix that pipe". Now I don't know if my plumber friend is absolutely correct or not, but he's been thru it professionally. But even with that said, there's the potential for having to get a court order just to enforce your right of access. Fun huh?  I hate shared sewer lines, and or driveways. 

I would ask him if you could quickly excavate the trench(Home depot excavator $250), and quickly lay the ABS, then cover it back up nice and tight. Maybe let him borrow the excavator for a day. This could get ugly. Hopefully it stays friendly. But I know where I'd tell you to go if you think your old pipe is my problem. Be nice and get to work.

[Sean Barry]

@Justin Winn @Chris Seveney Thanks to both of you guys for bringing up the idea of talking to the city regarding a requirement to upgrade the sewer as part of his building permit. He did pull a permit but he has not informed the building department of the existence of the sewer.  I will check in with the building department official this week and get their opinion.  

@Sergey A. Petrov  I did not say it was a shared line.  No offense to you but you made that assumption.  He has a separate line that leaves his home and taps the main. My line stands alone and crosses the back of his property. 

@Henry T. I like your sense of humor but I would not agree that your opinion is valueless...quite the contrary. I have spoken to an attorney briefly when this issue first came up and he was of the opinion that regardless of the age of the line that my neighbor would be responsible if he damaged it. He also mentioned that I would have a prescriptive easement and would be able to trench thru my neighbors yard to replace the line. Of course I would be responsible for repairing my neighbors garage floor or driveway.  And this possible scenario just highlights why we would want both want to resolve this before he builds.  I still feel that my sewer line has many years left on it and he is initiating this action and therefore he should pay for it. I am considering your opinion that I should play nice and just get to work.  Maybe tomorrow morning will have me seeing this from a different perspective, not sure. 

And I did do the research when I bought the property. I have known of the line and it's routing since that time 20 years ago.  I knew where it traveled then as I do today. But if you have a working but delicate antique car and I hit can I say the problem was the delicate nature of your car.  My sewer line works and if he damages it...then that is on him or at least that is the way I am seeing it. Totally open to anyone who wants to add to this especially on the legal aspect. Thanks to everyone.

[Sergey A. Petrov]

I suppose it is even more interesting then… I know there are eminent domain and implied easement laws and other things. But at the end of the day, your line is on someone’s property. It is still your line that is very old. Using the classic car example, I am going to put mine in your driveway. I want you to do nothing with your property that could potentially damage my car. If you do, you should pay for my car but I am not moving it out of the way of whatever it is you want to do with your property. After all my car has been sitting in your driveway for 50+ years and still has a few more years to go before it falls apart. Or play nicely. It is your line, work with your neighbor but now I almost feel it is 100% on the owner of the sewer line vs a split. Easement or no easement, utilities cross all the time. The responsibility to maintain, repair, and replace remains with the owner of that utility unless of course someone intentionally damages it. And somehow a potential damage to a very very old utility that happens as a result of normal construction work doesn’t fit in that box in my head. Look at it as an opportunity to move the line (or replace) especially if something is about to be built on top of it thereby hindering your future access to it. 

[Henry T.]

You sound like a straight shooter to me. I know you'll work it out. As for the car analogy. I will guarantee you the insurance company WILL claim the classic car had previous issues in an attempt to lower the claim. Absolutely! Fair or not, this is the nature of humans in business. But that car would be in an open domain. Your sewer line is under your neighbors domain, unfortunately.  Good luck my friend.

[Chris Seveney]

Not sure the type of attorney you are using, but I would get a construction attorney involved. I deal with them in my line of work on a daily basis (one sits next to me) - not legal advice. But with a prescriptive easement vs. easemement, typically an easement with have CCR's that outlines exactly who is responsible. In this instance, there is nothing defined. You really should try and work something out with the neighbor as I noted prior, eventually your line is gonna need to be replaced and being able to place the cause on the neighbor will not be easy. Even during construction, if something happens you still need to prove he did something wrong.

We have done a lot of work in areas with construction and we put up monitoring devices on adjacent homes for vibration. Most people do not realize a truck going by causes more vibration than construction. When we got claims filed, we provided the reports to the city, the attorneys and if we never exceeded the limits it was an easy decision. 

At the end of the day you will pay more to fight this than the cost of the line, which again seems like it already needs to be replaced. 

[Sean Barry]

@Chris Seveney Thanks for your insightful points.  I particularly like your last point because of the truth in that statement...it is going to enrich the attorneys and leave us having to make the repairs anyway.  I couldn't prove that the owner before damaged the line and I won't be able to prove it in the future if the current owner damages it.  I am guessing the smart play is to offer to split the cost of installing a more resilient line and try to get a written easement that has been reviewed by an attorney and offer to split this cost as well. 

The other option is to move the line to the north and run it along the public alley.  This would involve a significantly greater cost because a new tap at the main would need to be installed and a pit would need to be dug to cap the abandoned tap.  

Regardless, through this discussion the path forward has become more clear....now is the time to replace the line.  He will want it done to avoid damaging it during his construction or the possibility of it failing on its own and our need to exercise our right to dig it up for replacement.  I want it because I need a solid working sewer line for my tenants and I do not relish trenching through someone's garage floor.

[Chris Seveney]

Also, get your insurance company involved as well. They may take care of it, as your insurance company will contact neighbors.

One note to make, if you contact county he would not be able to build over it if they consider it a prescriptive easement. This would be a way to get him to move it as well. 

[John Mocker]

Sean,

Most standard policies would not cover a underground Sewer line outside of the foundation.  If something happens you can still submit a claim but its a longshot.  The coverage you need to add, if available from your insurance company is Service Line Coverage (may be under a similar name).  Some companies have added this as an optional coverage.  It usually has a max limit for damage to and underground line that services the house.  

[Sergey A. Petrov]

Quote from @John Mocker:

Sean,

Most standard policies would not cover a underground Sewer line outside of the foundation.  If something happens you can still submit a claim but its a longshot.  The coverage you need to add, if available from your insurance company is Service Line Coverage (may be under a similar name).  Some companies have added this as an optional coverage.  It usually has a max limit for damage to and underground line that services the house.  

@John Mocker - is it outside of the foundation or outside of the property boundary? Or are these used interchangeably in the insurance world?

[John Mocker]

Sean

Outside the foundation.  Regardless of the location (if it is on your property or not), being outside the foundation most standard policies will exclude those pipes.

[Sean Barry]

@John Mocker  Thank you for saying that John....I guessed that was the case.  I am going to double check to see if there is a recorded easement for the sewer on my neighbor's land.  If the title company missed that then their insurance would most likely cover moving the line. 

[Bruce Woodruff]

My opinion only, but it's your sewer line and it's old. Should be replaced regardless of what your neighbor is doing to his property. He is just moving up the date a little. I'd suck it up and get it done, not worth arguing about. What are you talking? $10k or so?

[Sergey A. Petrov]

These are fun! My shared line I mentioned above is on a commercial property. But, my manager on one of my single family rentals called me over the weekend and apparently I might have a potential break in that sewer line. Still waiting for the sewer scope and the report / assessment from the contractor that they had come out. A newer build home but apparently on an old 1920s line. All was well when I bought the house years ago. I know the owners of the neighboring property went through a break in their line a few years ago to the tune of I believe $50k. The line runs across the street before joining the main and property owners are responsible up to the main regardless of location. Looking forward to writing that check (not!). That’s urban Seattle for ya!

[Sean Barry]

Hi Bruce.  I respect your opinion but I am not sure I agree.  Should everything that is old get replaced?  I own a good number of rental properties...some have new roofs..others old.  Some have old walkways or older plumbing...or older gutters. Should I replace all of those things because they are old? I generally replace things at the end of their service life. Even though I outright own most of my buildings and have very little debt I would not normally replace this line until it's time had come.  The cash flow in my business generally does not allow me to go around fixing everything to make it new.  Because he is "moving up the date" I would think he bears all of the cost or part of the cost.  The line works today and probably has a good number of years left on it.  It is happily working in its location and from my perspective here comes a guy that wants to build over it.  Not only is he going to possibly destroy it he is going to make it real hard to trench up in the future.  These are his action that are causing this and therefore I think he should bear the cost.  Admittedly, I might be willing to kick in something due to the age of the line but I would like him to at a minimum pay part of it.  I should add this is only my opinion....I have not had a situation quite like this one before. Thanks to everyone for their help on this. 

[Jonathan R McLaughlin]

@Sean Barry so you are being thoughtful about this which is good. Try and look at it from a few different perspectives and try to avoid a fight. He may be “moving up the date” but it’s also a chance to get a free or discounted dig which is a good deal of the cost.

My gut is that’s what I’d ask…hey before you lay down the slab can u expose the pipe and I’ll replace so it won’t be an issue for either of us

[Bruce Woodruff]

@Sean Barry Everything is replaceable when it reaches the 'end of it's expected lifespan'  as we used to say doing Home Inspections. You said the house was turn of the century by which I assume you mean 1900s? A 2000 house would not have clay lines so I'm pretty sure you meant 1900s.

So given that the 'expected life span' of clay pipes is 50-60 years, that means that this sewer line is past due for replacement. Could it last longer? Maybe....but at 120 years, it is clearly 'past the end of it's expected lifespan'

Which is why I respectfully say, just replace this and move on. Maybe the other owner will give you half the cost....maybe not. Still a great time to get it replaced, even (if possible) moving it outside of the other foundation. Which the city might make you do anyway....

[Bob Ritner]

Even in down in the flat land of Denver, the bottom of the new footing for the garage will, at a minimum, come within 12 to 18 vertical inches of the existing sewer pipe. The soil below the footing will need to be tamped and packed or over excavated and re-compacted to likely a 90% dry density so you are not being paranoid. The footing work will very likely destroy the pipe. Yes, you likely have an implied easement, but probably the best outcome with the path of least resistance and fewest dollars spent is for the other property owner's contractor to dig a new trench for your new pipe outside of the footprint of the new garage since they already will have the equipment on site. You pay to install the new ABS pipe and they pay to do the earthwork. If they will not play ball, then you have a right to stay the start of their construction with the county until the "easement issue" is resolved. Not sure about Colorado, but any jurisdiction I have worked in typically requires that easements be shown on order for plans and permits to be approved. If one is in dispute, then that is your leverage to get them to be a team player. If not, then their construction comes to a standstill. 

[Sean Barry]

@Bruce Woodruff  I hear you....on one side my hand is being forced by his actions and the other is to see this as the opportunity it is and get done now what would have to be done soon enough.  I hear the wisdom in what you are saying...this is in both my and my neighbor's best interest to iron this out now.

@Bob Ritner Thanks for the insight. This is why forums are so great...you get the benefit of others hard won experience and you share it so others will benefit.  We had the line located and at the moment it looks like it would lie directly where the footer will go...no bueno. If we move the line outside the perimeter of the new garage with overhead living space (not exactly sure what he is doing) I am assuming there is no problem in the pipe handling the compaction (I believe we mostly use SDR 35 here) under the portion that would be a mini driveway or apron?  If we move it 6 feet away from the footer we would be in the public right away along a storm drain in the alley (there is no sewer main there) and then it could possibly tie back into the existing tap but I'm not sure we will get the fall we need once we swing wide for the alley and then go back to the tap. Going the alley route would eliminate the hassle and cost of an easement. As for getting him to "play ball" the chief building inspector is involved in all this and I will ask him tomorrow about the City's requirement for a sewer easement in his plans in order for him to move forward.  I really am not trying to be "that" neighbor this guy has just done a few things that I won't detail that have made me shake my head and I want to proceed cautiously here.  This has all the elements to turn into an epic s%$#show and I don't just mean a cracked sewer.  

[Sean Barry]

@Bruce Woodruff Fair points and thanks for your excellent comments.  You are probably spot on in terms of your age estimates for the home...I did mean 1900's.  The clay line while in good shape apart from where the previous owner cracked it has been happily working.  I agree that now is the time to "get 'er dun".  

For anyone who reads this in the future my understanding at this point is that I have probably have an implied easement but not a prescriptive.  Still not sure what rights that would give me or anyone and maybe only a judge would decide that. I am going to be working to make sure it does not go that route. 

[Account Closed]

The original plat maps and deed and stuff may indicate that the sewer line is an easement. I’m not sure, but I think an owner cannot build on an easement.

Before and after videos of the segment beneath the construction might help, but probably won’t.

You own the sewer line from the foundation bot, but not including, the “Y” that connects to the main. Two years ago, I bought a brand new shiny sewer line and it was really difficult, frustrating and stressful. The break was directly in front of my tenant, a national bank. They had to close for two weeks which I learned is a really big deal for them because SEC regulations don’t allow them to close. I had to dig up the street (owned by the county) and sidewalk (owned by the municipality). 10 feet deep. Needed engineering studies, county and local approvals and numerous inspections as the project proceeded, three different construction crews… It cost about $120,000, but it sure looked nice before they buried it.