Make certain to include a contingency in the real estate contract


Reader Question: We consistently told our Realtor that we wanted a swimming pool or a house where the backyard was big enough to put a swimming pool. We bought a house that had a yard big enough to put a swimming pool, and we find out from the pool company that there’s an easement in the backyard that prevents us from installing the pool. I talked to the Realtor and told her this new information. She said that she wasn’t aware of the easement and she was going to pull our paperwork. She finds out that there is, in fact, an easement. She’s saying it was in the paperwork that we signed. Every conversation we had with her where she used real estate jargon we questioned her about and relied on her knowledge to guide us through the ins and outs of buying our dream house. Shouldn’t that have been her responsibility to have known all this before we bought the house? Please advise.

Monty’s Answer: Without the benefit of her comment, on the surface, it appears she may be culpable. Here is a way to investigate the situation to gather some facts before making a decision on what to do next.

Take the following four actions:

1. Go to your file from the home closing and look for the title policy or the title commitment. The title report would mention an easement. If you do not have that document, call the title company and ask them to email you a copy of the title documents. Also, ask the title company to send you a copy of the recorded easement. You can then determine the identity of the party retaining the easement.

2. Call the pool company for the document or source of information. Are there overhead utility wires along the rear lot line? Is there a backyard storm sewer? Or some other underground piping of water, natural gas or electricity. These services are usually identified to alert property owners of their presence. If it is a utility company or the city, alert the public works department to the situation and see if they can help.

3. Look in your file for a seller condition report or some similar title. Review that report to search for a question where the seller stated whether or not there were easements on the property. It is useful information to have as you sort through the situation. If such a question is there, it could implicate or exonerate the seller.

4. Review the purchase agreement. Is there a contingency in the purchase agreement stating the offer is subject to the buyer determining there is no restriction on constructing a swimming pool? If that clause was present, how was it satisfied? If it is not there, do you any emails or text messages or notes in the file or on your computer where a written document can demonstrate the agent knew the swimming pool was important to you?

At this point, the situation is now much clearer. There are several possibilities:

a. There is a recorded easement for future construction that never took place, and now could be abandoned.

b. A recorded easement exists but filed against the wrong property.

c. There is an actual reason for the easement, but the holder of the easement may have a solution that would allow them to release the easement.

d. There is an actual reason for the easement, and it would not be possible to have it set aside.

The value of your efforts

If this process has not uncovered a solution and the easement is real and not to be expunged, you now have a good handle on the situation. The data you gathered is helpful in presenting the facts to an attorney to get a legal opinion as to your options. If you do not have an attorney, here is an article on the Dear Monty website that may be helpful in identifying a good real estate attorney to render an opinion.

You did not mention whether the pool you are planning is an in-ground or above ground pool. While it remains unclear the elements of the easement and its purpose, the fact an above ground pool is not as permanent, and above ground pool may allow for some negotiation with the easement holder.

Once you have a legal opinion, and some guidance as to all of your options you can decide on your next steps.