Ask Me Help Desk - Well ownership

Well ownership

I purchased a property in 2010 from a bank. After the purchase I learned that the well on my property is used by 3 other properties. Nothing was ever said about this when I bought the property by the title company. I hired a lawyer and I am asking for monthly fee of $50 to continue to use my water and to also agree to split the cost 1/4 if something on the well needs repair The other properties all run businesses out of their buildings. They are refusing saying they owe me nothing for the water except the cost to pump it. My lawyer can't find anything doing a title search and the other side is saying they have the right to use water. My lawyer is recommending that I do a quiet title. First, why would I need to do that if it ? Second, can I legally turn off the water without doing a quiet title? What might be out there if it is not on the title? The property used to all be owned by one person (25 years ago). If I turn off the water and the people sue and do end up showing something saying they can use water, can I recover my cost by going after the title company or bank? The area has a well digging restriction so for them to build a new well is all but out of the question. If I have to do a quiet title my offer to them is for sure going to almost double to cover my lawyer cost if they lose, and one of the business is a hair salon so water is a must!

There may be something that doesn't appear in the title that is on the land. Do you know if you were deeded the mineral rights? Also is there any CC&R's on your property? The city wouldn't likely allow a split of property knowing the well is landlocked. Or if you continue with this they may very well be able to drill for a well stating hardship and get a special permit to do so.

If the Title company did not advise you of any easement for water usage, then the Title Insurance you purchased should cover your legal costs.

If the other owners claim they don't owe you anything, then they need to show you an easement or agreement that they have the right to use the well.

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My lawyer is recommending that I do a quiet title. First, why would I need ?

Huh? Will you please rephase your question?

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Second, can I legally turn off the water without doing a quiet title?

If they do have some sort of easement or license, do that at your peril.

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What might be out there if it is not on the title? The property used to all be owned by one person (25 years ago). If I turn off the water and the people sue and do end up showing something saying they can use water, can I recover my cost by going after the title company or bank?

Not unless that "something" is of record and the title company failed to find it.

I suggest that you ask your lawyer these questions. And another thing to consider is to have your lawyer do pre-suit discovery to force your neighbors to show what, if anything they have in the way of a legal right to use the water.

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Originally Posted by califdadof3

There may be something that doesnt appear in the title that is on the land. Do you know if you were deeded the mineral rights? Also is there any CC&R's on your property? The city wouldnt likely allow a split of property knowing the well is landlocked. Or if you continue with this they may very well be able to drill for a well stating hardship and get a special permit to do so.

Nothing was stated when I bought the land about mineral rights. There are no CC&R on the property. I would be more than happy to allow them to drill their own well. I called a local well digger and he said it needs to go at least 400 plus feet down for the well and would cost them $15-25000. The land was split between children first then they sold their pieces along the way.

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Originally Posted by AK lawyer

Huh? Will you please rephase your question?

If they do have some sort of easement or license, do that at your peril.

Not unless that "something" is of record and the title company failed to find it.

I suggest that you ask your lawyer these questions. And another thing to consider is to have your lawyer do pre-suit discovery to force your neighbors to show what, if anything they have in the way of a legal right to use the water.

Restated...
My lawyer is recommending that I do a quiet title. First, why would I need to do that if it is not listed on the title? If it is not listed with the county how much legal bearing can it have. Lets say they have a piece of paper written 20 years ago scribbled on the back of a piece of paper saying. "Go ahead and use the water from my well." I have purchased the property and no documentation is stated about the well easement. To my understand a quiet title is if there is a confusion about who has the right to the title not what is listed on the title.

I guess what I am asking what will the quiet title bring to the surface that has any legal standing that isn't recorded with the county when I bought the property? The title company is claiming nothing, our search of the county records of all the properties is showing nothing. What could they have that would stand up in a court of law? This is not about who owns the rights to the title. It's about who has easements on the title.
For example: Property A that owned the property 25 years ago said they could use the water but never filed the document and property B has that piece of paper (neither filed the paper). Would that be enough for them to have rights to the water even though I now own the property?

I see them being on my well as a liability and why should I continue to allow them to use it for free? My lawyer is recommending I allow them to sign a contract that says I don't have any responsibility for the water and not charge them. I said "you know if anything ever does happen that I will be dragged into the situation, even if I have a document saying I'm not responsible. Then I will be paying for this well again." That is why I want to charge them a flat fee for gaining access to the well on my property.

I would be more than happy if they are not on my well! That is what I am trying to do but if they do want to continue to use it I want something that will make it worth my time for accepting the risks involved. I'm not trying to get rich off the water.

To me the pre-suit discovery sounds like a more appropriate thing to be doing at this point. I just don't want to take the time and money to do a quiet title if it really doesn't have anything to do with my case. I know my lawyer is a litigator for a real estate law firm and I'm not sure her experience in what is best in this situation. That is why I am asking, because she didn't seem to be able to answer my questions about why do quiet title. She just said it will make sure no one has rights to the land.

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Originally Posted by Timbroderick13

This is not about who owns the rights to the title. It's about who has easements on the title.

Exactly! And the burden of proof is on them. What I don't know is what proof will be acceptable to a court

In this case can't I just have my lawyer send a Production of Documents letter to the other sides? Do they have to provide the documents if they do indeed have documentation of an easement? That seems much more reasonable that the drawn out process of a quiet title.

This seems to be an unusual case. When I visited the county they were really surprised that there was nothing recorded, but also said because it was split between family first that could be the reason why nothing ever was done.
Father owned the property and then gave parts to his sons.

Can't they claim prescriptive easement, depending on the state and how long they have used your well?

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Originally Posted by AK lawyer

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Originally Posted by Timbroderick

Second, can I legally turn off the water without doing a quiet title?

If they do have some sort of easement or license, do that at your peril.

I'm going to change my mind here: I wrote that figuring that maybe the title company neglected to find a recorded interest. That's not likely, and if it were the case the title insurance would cover your liability. Shut it off.

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Originally Posted by joypulv

Can't they claim prescriptive easement, depending on the state and how long they have used your well?

That's a good question.. I will ask my lawyer. Though I am surprised they never mentioned it to me if they thought it might apply.

Thank you for all the input! This will help me ask my lawyer meaningful questions. I like being informed when talking to my lawyer. We all know they are too expensive to waste time with. I'm starting to see some of the challenges that I am facing. I appreciate all the ideas you are all providing me.

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Originally Posted by joypulv

Can't they claim prescriptive easement, depending on the state and how long they have used your well?

I believe that one of the elements for a prescriptive easement (and do check with your lawyer to see if this applies in Texas) is "open and notorious". I don't see this in the case of a shared well.

My guess what happened here is that, if as you say the homes were originally owned by a common grantor, this person executed deeds subdividing his property to his children and in so doing neglected to consider the common water system as something which should be provided for. If he used a lawyer to prepare these deeds he probably failed to mention it to the lawyer.

I appreciate the input of everyone. I have contacted my lawyer and they are investigating the questions I have and also going to contact me about the pre-suit discovery and Production of Documents to see if they meet my needs. This forum has given me lots of information as well as bringing up new questions for my lawyer. I will keep you all informed about what happens.