If an easement for septic was listed on the purchase agreement but not transferred on the deed deed, what are the owners options?

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If an easement for septic was listed on the purchase agreement but not transferred on the deed deed, what are the owners options?

We purchased our home 6 years ago. It was subdivided from 60 acres. On our sales agreement, there was an easement stating that our septic was to be placed on the 60 acres. Last year they sold the 60 acres. We recently met with a lawyer to discuss placing the septic. The lawyer stated because the easement was on the sales agreement but not the deed we have no right to place the septic. He stated we would have a good malpractice case against our lawyer, but he has since died. Is this true? What are our options? Is the land owner we purchased the home from liable because he did not uphold his end of the agreement?

Asked on May 4, 2011 under Real Estate Law, Pennsylvania

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Essentially what you have here is an issue that can really go either way (for you or against you) depending on state and federal statutory law and case laws. Here is the issue, the statute of frauds requires all such issues to be placed in writing (the four corners of the contract rule); however, while that applies definitely to your purchase and sales agreement, it did not transfer to your deed. So, the issue becomes was it incorporated by reference in any part as mentioned in the deed (i.e., can the deed be interpreted to incorporate the purchase agreement by reference?) or can you seek an amended deed? If the purchase agreement was transferred into closing instructions for the title company or settlement company and closing attorney and if those individuals and entities had copies of the agreement, then the deed should have included that provision somewhere. Talk to a land use attorney and see if you can seek reimbursement or damages from any one of the people involved.


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