Q: My husband and I live in an older part of Suisun City and have owned our small home for many years. This week we got a letter from the neighbor behind us that their sewer system in inoperable and the plumber seems to think their pipe runs through our backyard, under our driveway, and under our street. They are asking permission for the plumber to come over to see if they can locate the pipe so they can fix it. We don’t really want their sewage pipe running through our yard. In any event, they would have to tear up the landscaping or concrete to get to it. What are our rights?
A: Well, first of all you should see if you really have a problem.
It sounds like nobody really knows if the pipe is even running through your yard. I can’t imagine it will hurt anything if you let the plumber come over and use his detection equipment to see if he can find the pipe. If no pipe is found, then you obviously don’t have a problem.
Nowadays, when a subdivision map is approved many designers, engineers and government agencies review the plans to be sure the underground utilities run in directions that make sense.
That wasn’t the case many years ago.
It certainly isn’t uncommon in older areas to find the neighbor’s water lines, septic tank and leach field, or even sewer lines, running through neighboring parcels with no recorded easements in the record.
If the pipe is found to run through your yard, the first question you should ask is whether or not your home’s sewage system shares that same pipe with your neighbor. The old systems were made out of clay pipes. These pipes all seem to fail over time. If this is a shared pipe, you many want to work with your neighbor in replacing it before your system stops working, too.
However, if the plumber finds the pipe and you decide you don’t want to have your neighbor’s pipe running through your yard, you will probably need to consult an attorney about your rights. The body of law in this area is not only complicated, but the answer is usually determined by a variety of facts.
For example, if you have ever had reason to suspect the pipe was there, your neighbor will have already, under the law, acquired an easement to keep the pipe there.
You may recall from previous columns that the requirements for taking an easement against the wishes of the landowner are simply that the neighbor’s use of the easement was “open and notorious” and used for five years. Clearly the pipe has been there for more than five years.
The open and notorious part refers to whether you should have known of the use. It sounds from your letter that you didn’t know the pipe was there. But should you have known? That will be the factual question.
Often there are signs that a pipe is in the ground. Maybe there is a clean-out for the pipe that is now covered with brush in your backyard. Maybe your original sales documents made mention of the pipe. These are facts people can argue over when they are trying to get an easement.
On the other hand, the city will probably be on your side if your neighbor has a public sewer system running under the street in front of his home and you’d rather have him tie into that pipe.
Cities are well aware that these older developments often spawn lawsuits over these disputes. They would much rather have your neighbor correct the problem now by going directly into his street for sewer services.
My point here is your rights are way too complicated, both factually and legally, for the limited capacity of this column. I suggest you let the plumber investigate the existence of the pipe. Then, depending upon the results, consult an attorney.
Frankly, even if you don’t mind the pipe going through your yard, at a minimum you should have someone draft a maintenance agreement so future property owners will know what their rights are when this problem crops up again.
Tim Jones is a real estate attorney in Fairfield. If you have a real estate question you would like to have answered in this column you can contact him at [email protected]