Conveyancer said no easement, but it’s there

Hi,

We bought an old (1950s) property a year ago, with plans to build another house at the back.

The sales agent, along with our conveyancer declared that the previous owner took steps to remove the easement (sewer main running along the back), which was what made us decide on the property purchase.

Recently, both the draftsman and the water company told us the easement was still there.
This has really thrown a spammer in our plans and caused us headaches - we can’t build the original plan that we want all along.
The draftsman mentioned that the water company offered the previous owner the option to remove the easement, provided she ran another sewer main along my neighbours backyard(highly likely she did not do this, I’m currently awaiting sewer details from the water company).

We didn’t expect this to happen at all. This has great potential to harm us financially. What are our options at this point? Should we talk to our conveyancer (which she may deny wrongdoing)?

 

could have told you anything to get a sale

was a current sewer plan included in the sale contract ?

relocation of the sewer main would be extremely costly. however it might be possible to build over the asset. there will be associated conditions and costs

consult your architect or water service coordinator.

 

I'm guessing the neighbour would also have to agree to have the sewer (and easement) to be placed on their land and I can't think why they would agree to it if they didn't have to as it would reduce the options for their land.

What type of conveyancer did you use? a settlement agent or lawyer? If this is Melbourne what was in the Sectiion 32? How did the conveyancer tell you that there was no easement - did they provide any report or just say that the owners had declared it moved to them?

Potentially if you had taken out title insurance it might cover something like this but it depends on what was provided to you in the sales contract etc

 

The option you should have encounteerd first. See a solicitor.

 

If a licensed conveyancer gave you this advice in writing then speak to a solicitor - possible professional negligence.

A practical way forward is encasement. Lots of good articles if you google "sewer encasement".

 

"took steps to remove" is very different from doing it and getting it approved and changed in land titles and planning. You may have something if the advice was in writing but geez, taking legal action is a long, expensive process with no guarantees. Any other solution is preferable.

 

Most times that seems like a waste of money, however, in this case, it certainly wouldn't be.

@Westminster do you take it out when you purchase or?

 

@Colin Rice sometimes but not always. If it's a purchase in an older area where boundaries might not be where they should be then I will definitely consider it. At the end of the day it's a relatively small amount of money against a major purchase and whilst it only covers some situations it can be seen as the price of doing business.

 

That is an excellent point and will add to the knowledge/guidance bank.

 

another reason for using a property lawyer over a conveyancer.
I hope you have all this in writting....

Yes, check the section 32 first
If the easement is listed in these documents then it falls to you and your conveyancer, if it isn't shown then there may be a case against whom ever prepared the contract.

 

Depends too if advice was obtained prior to signing. So many people sign then hand the contract to their conveyancer and want to blame them. Conveyancer assumes you knew what you signed. Its too late.