Neighbor's Erosion Liability Depends On Several Factors

Q: My neighbor's down spouts and catch basins empty into a concrete trench that ends as a hole in the cement wall that separates our two properties. Then this water filters under my driveway and down my slope causing erosion. I want to hire an expert to solve this problem, and think the neighbor should pay. He says his house was here first and thinks otherwise. Is what he's doing legal? Can he be compelled to help fix the problem his water causes on my land?

A: Attorney Richard Aramburu says there are several ways your situation could be interpreted, so he'd need more specifics before he could give you a definitive answer. But in general, if an owner's land slopes downhill and he or she takes steps to control that water, that's probably OK.

However, "what you're not permitted to do is gather your water up and put it into a trench and then deposit it on someone else's property if it does them damage," Aramburu says. As for your neighbor being there first, if this water situation has been going on for 10 years, the neighbor might argue he's earned a "prescriptive easement" entitling him to do what he's doing. Aramburu suspects the neighbor would have trouble proving this.

It's most likely you're going to have to solve the problem; no government agency will do it for you - although if the building permit for the neighbor's home specified a certain type of drainage, and if those specifications weren't followed, pressure could be exerted. Research the permit at your local building department.

But the reality, Aramburu says, is that besides hiring the drainage expert you'll have to hire an attorney to pursue the neighbor, beginning with an injunction to get him to stop dumping water. When you do make a fix, he advises you to be very careful it doesn't simply pass on the problem to yet another neighbor - getting you in legal trouble.

Q: My mortgage broker says when I refinance my home I'll have to pay for escrow and title insurance all over again. I don't understand why.

A: Keystone Mortgage loan officer Drake Dornfeld says it's the escrow company's responsibility to make sure the title is clear, and to act as a disinterested third party in handling payoffs and disbursing funds. "Most lenders require the transaction to be completed at arm's length - so anyone like a mortgage broker or the borrower cannot influence the completion of a refinance."

As for title insurance, it protects the lender for the life of the loan -not the borrower for as long as he or she owns the home. Thus, if you refinance, you must buy this insurance again so the new lender or policy is in "first position" to claim the home if anything goes awry. "It also protects the lender in case of any judgments or liens not found initially, or entered into subsequently," Dornfeld says.

Q: Can you direct me to the names of city or county records the public can access to see if an oil tank was removed or added to a certain property?

A: Because most homes have extensive legal paper trails, it seems reasonable residential oil tanks would, too. But that's not the case. In fact, it's not even known how many local properties ever had oil tanks, or how many have been removed or abandoned and when.

However, in the past few years, many local fire districts - there are 30-plus in our region - have begun requiring permits to remove tanks, and if your local jurisdiction is one of these, they'll likely know if the tank at a particular home has been removed recently.

"Some fire districts may have records going back five or 10 years, but most don't have them back that far," says James Ulery, president of Seattle Tank Service. Call your local fire marshal for information.

Otherwise, how can one know? If you're considering buying a property, check the oil-tank section on the seller's disclosure form. Check the home's furnace area; Ulery says "oftentimes the old (oil fuel) lines will be left in." Check the yard for an oil-delivery spout. As a final option, Ulery says tank-removal experts can sleuth out old tanks by electronic means.

Home Forum answers readers' questions every Sunday in the Home/Real Estate section. Send questions to Home Forum, Seattle Times, P.O. Box 70, Seattle, WA 98111, or call 206-464-8510 to leave your questions on Home Forum's recorded line. The e-mail address is erho-new@seatimes.com

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