We own a water drainage easement...Can we fill it?

[Fritochips4u]

!

 

[MassJester]

Maybe not. Did you have an attorney review the purchase and sale documents when you bought the property? Did you get the builder's assurance in writing?

The laws in each state are different, and we don't see the exact phrasing of the easement, so it's hard to say with certainty what your rights are in this case. When you are purchasing property and are told there is an easement, that is not a meaningless reality. Typically, easements attached to property may not be removed or ignored casually, and the time to explore that is at the point of purchase.

 

[DrCavin]

I think you got your answer from the Engineer, not what you wanted to hear but probably what legally you can do. NEVER take the word of a builder on what can be done when it comes to easments!!

 

[polineedyan]

Dont know much about the laws surrounding that. What is the purpose of the hole? As a water runoff, to prevent flooding? being a landscaper, I really dont see the purpose of the hole to begin with..but i cant see across the street, either..
What I dont get is why the city would send you to an engineer or whatever. Its there for a reason, whats the reason? Seems to me, the city would have SOME interest in it being there..just dont get the 'hole' thing..lol

 

[KirstenB]

HELP!!

In 04, we bought our home. When we bought it, the builder told us that we could fill the water drainage easement that is located in the backyard.

We have been battling this for almost 4 years now. We went to the city who told us we needed approval from the original engineer who designed the "hole". We went to the original engineer who stated that they could restructure it so that we could fill 1400 sq feet....total we want to fill is 3800 sq feet. (This still allows drainage to pass through)

Here's a picture of it: We want to fill the triangle and allow the stream to continue. (Don't mind the storm...that's why I originally took the picture)

What really gets me is we PAY PROPERTY TAXES on this water drainage easement. I feel like it's MY personal property. Why do I need permission to fill a hole in my backyard?

Do I have a legal right to fill this water drainage easement that I pay property taxes on?

From the photo, it looks like the area is both close to the road, and relatively flat. I wonder if you filled it to 3800, then you got a lot of rain in a short amount of time if it would flood out the road? Or if the "downstream area" it runs into could flood out?

We have 2 ponds in our neighborhood. Our backyard runs back to one of them. I know the ARmy Corps of Engineers has very strict rules about all kinds of things with them. One of the homeowners tried to remove a bunch of trees to improve his view, and they told him he needed to stop immediately, and replant the trees.

 

[Fritochips4u]

Here's a better picture of what we want to do:

We only want to fill the triangle and still allow the stream behind it for drainage when it rains.

We were told that the purpose of the "triangle" is for the 100 year rain. Since our circle was originally planned for condos and now there are homes, this deviates from the original plan.

The yard slopes down to the triangle. The area itself is flat, but we want it as high as the rest of our yard.

No, we didn't get the assurance from the builder in writing and never had a lawyer look at our contract. Nowhere on our contract does it state there is a water drainage easement. Only states that on the specs that the builder gave us.

Again, I'm curious as to what rights I have since I pay property taxes on it. It's frustrating that the city is telling me what I can do with my personal property.

 

[mickeyboat]

That is what an easement is all about. You own it, but someone has a right to use it.

If you check your title seach and/or your deed, I am guessing the easement is spelled out specifically.

IMO, you will not be able to fill in that area unless the town is willing to relinquish its right to the easement.

Denae

 

[Geoff_M]

Again, I'm curious as to what rights I have since I pay property taxes on it. It's frustrating that the city is telling me what I can do with my personal property.

As others have said, state laws vary so much that there's likely little anyone here can say that'll be of much use to you without knowing the particular laws of your state. Here in Michigan each county has an elected Drain Commissioner. If you did something like you're proposing without getting permission first from the Commissioner, then you can land in big trouble and be fined and/or forced to restore the drainage area.

As for telling you what to do with your own property, well as long as you live in an incorporated area, there's likely LOTS of things the government can tell you what you can and can't do with your property. That's the same for pretty much everyone else living in those settings. Set-back requirements, zoning, and building codes are only a few examples of how "for the greater good" trumps our desire to personally do what we want with the land we own. Good luck with your efforts!

 

[polineedyan]

ok..wth is 100 year rain?

 

[froglady]

That is what an easement is all about. You own it, but someone has a right to use it.

If you check your title seach and/or your deed, I am guessing the easement is spelled out specifically.

IMO, you will not be able to fill in that area unless the town is willing to relinquish its right to the easement.

Denae

Correct on all points. Both the Deed and survey should show the easement.

 

[MassJester]

No, we didn't get the assurance from the builder in writing and never had a lawyer look at our contract. Nowhere on our contract does it state there is a water drainage easement. Only states that on the specs that the builder gave us.

Again, I'm curious as to what rights I have since I pay property taxes on it. It's frustrating that the city is telling me what I can do with my personal property.

The simple answer is that you need to contact an attorney to determine your precise rights, limitations and options. Further, you should never complete a real estate transaction without having all the pertinent documents reviewed by an attorney who should tell you, among other things, that all representations upon which you will rely should be in writing. This is a lesson that many people learn the hard way.

I'm not sure you understand what an easement is. An easement is an interest in land owned by another person (according to Black's), consisting in the right to use or control the land, or an area above or below it for a specific limited purpose. You own the land, but the municpality has an interest in your land as established by this easment.

 

[froglady]

ok..wth is 100 year rain?

It is a search that shows the most rain in the past 100 years, and what happened, flood wise. Of course, some "100 year rainfalls" have been surpassed in areas.

I'm sure a lot of people around NE Florida are going to be surprised when the next hurricane hits, because there are thousands of houses standing in areas that were completely covered by water in 1964, and they are not right on the ocean/river.

 

[brerrabbit]

As others have said you need to look at the title and deed and see what the local authorities say. I live south of Houston, Texas and we live in the world of retention ponds. By regulation/ law every time a builder builds something he is required to provide on his property, at his cost an area that will retain rain up to the amount of ground absorption he is displacing with the new building/ concreted areas. Similar regulations have been adopted across the country. From reading what you have written so far it seems like since the area was originally planned to have condos that the entire area was going to be required for retention. Since the plans were changed and obviously single family residences are less dense than condo's and they are telling you that filling part of the retention area is okay then they have recalculated the amount of retention area needed and you will have to probably live with that decision.

It seems like you should be able to do what you want with your own property but unfortunately when you live within certain incorporated areas they can tell you what to do.

As an aside the new trendy thing to do in the Houston area is to has common retetion areas for entire neighborhoods but leave some water in them all the time. They keep the water level low with long sloping banks so the excess area of the lake serves as the retetion area but you get a lake instead of an empty hole where weeds can grow. Thats why all the new subdivisions are, "The Lakes of Highland Green" etc. They call the retention pond a lake.

 

[JR6ooo4]

I think you got your answer from the Engineer, not what you wanted to hear but probably what legally you can do. NEVER take the word of a builder on what can be done when it comes to easments!!

after all they are just sales people.

Dont know much about the laws surrounding that. What is the purpose of the hole? As a water runoff, to prevent flooding? being a landscaper, I really dont see the purpose of the hole to begin with..but i cant see across the street, either..
What I dont get is why the city would send you to an engineer or whatever. Its there for a reason, whats the reason? Seems to me, the city would have SOME interest in it being there..just dont get the 'hole' thing..lol

It is the duty of Civil engineers to calculate and design retention areas, detention areas etc...

Correct on all points. Both the Deed and survey should show the easement.

Not exactly true. If the land is subdivided and the easement is depicted on the subdivision plat then there is no need for it to be on the deed. It should appear on the title report. If the easement is private and has not been recorded there is less chance that it will be shown on the survey. In illinois it is the clients duty to provide all information to the land surveyor.

It is a search that shows the most rain in the past 100 years, and what happened, flood wise. Of course, some "100 year rainfalls" have been surpassed in areas.

a 100 year flood plain is an area that has one percent chance of flooding every year.

check out www.fema.gov for floodplain maps of your area. See if it is listed as a flood plain. (shaded area)

also floodways and drainage are sometimes governed by the corps of engineers, Homeland security division of waterways and other federal authorities.

It may also be deemed as "wetlands" which makes more problems. Wetlands are not only determined by elevation and standing water but by the types of vegetation.

Land ownership is best described as holding a bundle of sticks. each of those sticks are a certain right. Like mining for minerals or oil, the right to build, or the right to deny access etc...

check on the easement language. Do you have a survey?

Mikeeee

 

[DevilDuckie]

We went to the original engineer who stated that they could restructure it so that we could fill 1400 sq feet....


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Do I have a legal right to fill this water drainage easement that I pay property taxes on?

Your answer is in your post. That's what you have a right to do.

 

[golfgal]

If that area now sits lower then your yard and collects rain water if you fill it to the level of your yard and it rains heavily, that water could back up into your yard and into your house, even if it isn't a 100 year flood. Usually a 100 year flood plain is in a higher risk of flooding. I would check the FEMA website to see what flood zone you are in to start with-you just need to put in your address. By filling that area you could put yourself into a higher risk flood plain, thus requiring you to get flood ins for a high risk area to the tune of about $3000+/year. Those holding areas are built for a reason.

In our old town it has been pretty dry for several years. A housing development went up where there was once swamp land but since it has been so dry, people thought it was 'gone'. Well, all of the sudden our moisture level returned to normals and now people have wet, soggy yards and basements--what did they think would happen . Most of that town is in a 100 year flood plain. It has flooded 2 times in the past 16 years. Do you want to take that chance knowing that the most you are going to get to replace your house is $250,000?