I was contacted to survey the forms for a pool before an inspection by the city. The city has a requirement that the edge of water can be no closer than 6 feet to a property line or the slab of any occupied structure.
The pool company designs and then begins construction on the pool with the 6 foot figure.
What they didn't consider, is that there is a 7.5 feet wide utility easement along the back line of the lot. So now they have close to 1.5 feet of the easement occupied with their pool. I'm certifying that the pool meets the city's 6 feet requirement but I'm also showing that they are in the easement.
What are the possible outcomes?
The city approves the plan and they build the pool. A utility company now needs to install additional utilities and the pool is in the way.
Are they running the risk that their pool may be destroyed one day?
The city doesn't approve the plan and now they have to redo all the rebar and forms to get out of the easement.
I know which is cheaper!
Since I know this could get sideways fast, what are some CYA notes? Perhaps I should mention that the proposed edge of water is designed to be 1 foot from the form board.
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Easements are tricky instruments. By definition an easement gives rights of occupancy to another party while retaining ownership of underlying fee. Easements are not automatically exclusionary. A utility company may have the right to occupy an easement. But that doesn't give that utility owner the right to exclude others from said easement as if they owned the land. Existence of said easement does not exclude the fee owner from enjoying the full use of all of his property...but codes, ordinances or agreements may however. Also the right to occupy an easement doesn't give the owners of those rights (say a utility company) the ability to destroy surface property without compensation to the owner.
People encroach on easements all the time. In the case of an encroachment "busting" a code or ordinance a variance or formal acknowledgement by the municipality can be adopted and a structure allowed to be built or remain. Or the city can deny the permit and attempt to make the owner move the pool. Sounds like the city needs better permitting or oversight.
I've seen several law suits involving individuals building within an electrical transmission easement. Not necessarily directly underneath any conductors, but within the easement. Power companies don't like it, but unless the original agreement specifically excludes permanent construction within the easement there is really nothing the utility company can do legally. Pipeline companies are even worse. I've seen carriers attempt to keep owners of property from building roads and even fences in close proximity to their appurtenance. Basically what it boils down to is an easement cannot exclude the fee owner from enjoying the full use of his property unless those rights were granted when dedicated, or formally given up at a later date.
A property owner not only has every right any utility company may have to occupy an easement, they have the right to occupation and use of the surface also..unless precluded by a superior code or ordinance.
Hard to answer for your locale.
Here the city may approve but in the
future the occupation into the easement could most likely cause a financing snag for a buyer or owner.
But if the easement was for municipal services, you would think that they would put up the red flag.
That decision might be made by a minor bureaucrat who really does not care to look at the big picture.
The good ol' Mortgagee Title Inspection or Improvement Location Certificate would catch that scenario eventually when the current owner attempts to sell. A picky lender could use that as an excuse to either deny the loan outright or to somehow profit from punishing the foolish borrower in some fashion.
Holy Cow, post: 423575, member: 50 wrote: The good ol' Mortgagee Title Inspection or Improvement Location Certificate would catch that scenario eventually when the current owner attempts to sell. A picky lender could use that as an excuse to either deny the loan outright or to somehow profit from punishing the foolish borrower in some fashion.
Standard procedure: Issue title insurance policy that specifically excludes the policy from covering any claims that may arise from the pool being in the easement....then charge a butt load more for the policy that excludes something...;)
did you stake the lines and neglect to note that there was an easement? I hope not! If so scramble to minimize the damage.
Yes, the owner could get his pool destroyed, and he may even have to pay for that removal.
Yes, the city could deny the permit.
easements are always treated too lightly... a word to the wise.
Easements and municipal permitting are two different things. A permit from the City is not blanket permission. It simply states your plan meets the sections of code listed. The owner is on the hook for any other violations, including the terms of easements.
I've seen this many times. Owners assume the permit means it must be OK. We cant catch everything but we better not be in the habit of failing to educate them on things like this. Showing the easement is the right thing to do. Getting the information to the owner is critical
arctan(x), post: 423551, member: 6795 wrote: I was contacted to survey the forms for a pool before an inspection by the city. The city has a requirement that the edge of water can be no closer than 6 feet to a property line or the slab of any occupied structure.
The pool company designs and then begins construction on the pool with the 6 foot figure.
What they didn't consider, is that there is a 7.5 feet wide utility easement along the back line of the lot. So now they have close to 1.5 feet of the easement occupied with their pool. I'm certifying that the pool meets the city's 6 feet requirement but I'm also showing that they are in the easement.What are the possible outcomes?
The city approves the plan and they build the pool. A utility company now needs to install additional utilities and the pool is in the way.
Are they running the risk that their pool may be destroyed one day?The city doesn't approve the plan and now they have to redo all the rebar and forms to get out of the easement.
I know which is cheaper!
Since I know this could get sideways fast, what are some CYA notes? Perhaps I should mention that the proposed edge of water is designed to be 1 foot from the form board.
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There are no special CYA notes you need to consider. If you did not stake the pool location for construction you have no issues other than making sure that you are correct with regard to the location you are plotting the constructed improvements at. Show the pool location, clearly show the easement dimension the encroachment and let the chips fall where they may as you are merely the finder of fact. The only repercussion to you if you did not stake or somehow approve the proposed location is that you may have to fight to get paid for your work if the client is unhappy with your findings.
The existence of the easement may or may not be a big deal depending on it's intention and how or why it was agreed to in writing. If the easement is exclusive their could be issues. More than likely the town is only looking at zoning issues and assuring the 6' setbacks are complied with but if the pool company pulled the permits and laid out the pool location by themselves then the liability of any consequences rests solely on their shoulders.
It always baffles me how things like this happen and the lack of understanding by the general public as to what the consequences could be by not engaging the proper professionals to protect a significant investment. My guess, based on past experience, is that it wound be a big issue until the property is sold and the new insurer of title picks up on the encroachment.
arctan(x), post: 423551, member: 6795 wrote: I'm certifying that the pool meets the city's 6 feet requirement but I'm also showing that they are in the easement.
That's all the CYA you need.
If you are in a "typical" subdivision with 7.5' UE's adjacent each property line, a 1.5' variance or an abandonment of a 1.5Ûª portion is usually easily obtained from the powers in charge.
😎
FL/GA PLS., post: 423619, member: 379 wrote: That's all the CYA you need.
If you are in a "typical" subdivision with 7.5' UE's adjacent each property line, a 1.5' variance or an abandonment of a 1.5Ûª portion is usually easily obtained from the powers in charge.
😎
If I remember correctly some of the variances allowed by local municipalities specifically state if the violating structure impedes public works or a public utility at some time in the future, the owner retains the responsibility of costs incurred. Something the City Attorney came up with, I'm sure.
Peter Ehlert, post: 423597, member: 60 wrote: did you stake the lines and neglect to note that there was an easement? I hope not! If so scramble to minimize the damage.
Yes, the owner could get his pool destroyed, and he may even have to pay for that removal.
Yes, the city could deny the permit.
easements are always treated too lightly... a word to the wise.
I didn't stake anything before construction began. I was called to do a survey to facilitate an inspection of whether the pool placement complied with the 6 foot setback.
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My client does think that since the city has the 6 foot requirement, that the 7.5 foot easement is now 6. I've educated him that it isn't the case. Now I'll educate him on the potential ramifications.
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So I've drafted up a prelim sketch of the pool and edge of water. Ignore the colors all you color haters! The edge of water at the pool skimmer is what I'm concerned about. Should I show that the edge of water goes to the back of the skimmer assembly?
If so, the edge of water will be within 6 feet of the slab. 
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arctan(x), post: 423634, member: 6795 wrote: So I've drafted up a prelim sketch of the pool and edge of water. Ignore the colors all you color haters! The edge of water at the pool skimmer is what I'm concerned about. Should I show that the edge of water goes to the back of the skimmer assembly?
If so, the edge of water will be within 6 feet of the slab.Sent from my SAMSUNG-SM-N920A using Tapatalk
Change the sketch to read "Proposed Edge of Water"?
Ken Salzmann, post: 423642, member: 398 wrote: Change the sketch to read "Proposed Edge of Water"?
Good catch!
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arctan(x), post: 423634, member: 6795 wrote: The edge of water at the pool skimmer is what I'm concerned about. Should I show that the edge of water goes to the back of the skimmer assembly?
Does anybody else have an opinion whether to show the proposed edge of water to the middle or back of the skimmer?
The skimmer assembly is within 6 feet of the slab... water goes in it. That should count, right?
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arctan(x), post: 423758, member: 6795 wrote: Does anybody else have an opinion whether to show the proposed edge of water to the middle or back of the skimmer?
The skimmer assembly is within 6 feet of the slab... water goes in it. That should count, right?Sent from my SAMSUNG-SM-N920A using Tapatalk
I would think that it might be considered a detail worthy of non-attention. Just as 1.5' x 5' masonry fireplaces on the side of houses are exempt from the setback codes, I would think in your case the "edge of water" would be an inclusive line of the major shape.
paden cash, post: 423766, member: 20 wrote: I would think that it might be considered a detail worthy of non-attention. Just as 1.5' x 5' masonry fireplaces on the side of houses are exempt from the setback codes, I would think in your case the "edge of water" would be an inclusive line of the major shape.
That's a fair point. But is this somehow more important? Is it a safety issue? I just don't want to be on the hook of someone gets electrocuted or some other unlikely event
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arctan(x), post: 423769, member: 6795 wrote: That's a fair point. But is this somehow more important? Is it a safety issue? I just don't want to be on the hook of someone gets electrocuted or some other unlikely event
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Methinks you might be over thinking this. Location a design (by others) that is being constructed (by others) should be a slam dunk for a surveyor. If the 'edge of water' is some sort of clearance issue, then by all means show it. But even if there is small portion of the technical "edge of water" that violates or approaches a minimum I still don't believe you bear any responsibility in the issue; even if it causes some sort of bureaucratic snag.
We have to be able to present the facts (physical truths) with only a passing sympathetic concern for the repercussion; we are professionals.
arctan(x), post: 423758, member: 6795 wrote: Does anybody else have an opinion whether to show the proposed edge of water to the middle or back of the skimmer?
The skimmer assembly is within 6 feet of the slab... water goes in it. That should count, right?Sent from my SAMSUNG-SM-N920A using Tapatalk
in your original post you said the setback is measured "edge of water", and I would consider the Pool to contain that water... so you Must show that.
It would be assumed that all the plumbing is outside that "edge of water" (except for the drain). I think ghosting in the edge of concrete as you have done would be sufficient.
>>> back to that pesky Easement. Come Monday morning the owner and builders need to hear from you (phone, face, and paper) about the potential issues that we have already beat to death.
good luck
