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posted: 4/4/2010 12:01 AM

Building line error unlikely to impact sale of older home

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Q. I have a question about something that happened at my closing. This was my first house, so maybe I am concerned about something that I don't need to worry about.

On the survey the seller gave to us at closing, my attorney pointed out that there was a building line violation. I understood this to mean that the house was built a little closer to the street than it should have been. My attorney asked the title company to insure this but the title company refused. My attorney then told me it's probably nothing to worry about and we finished the closing.

Is this something I should be concerned about?

A. Building line violations occur frequently. When a subdivision is platted out, certain restrictions are indicated on the plat. One common restriction is a building line, which requires the improvement (house) to be set at least so many (commonly 25 to 40) feet behind the front (and sometimes side and rear) lot line. This is to enhance the ambience of the community.

Surveying and/or excavating mistakes sometimes result in a violation of the building line. I agree with your attorney that in most cases, the violation is minor (often less than a foot) and generally no municipality is going to require that you move your home. This is especially true if the home has existed for many years. I have, however, been involved in new construction situations where, during construction, the foundation violated a building line and the municipality required the foundation be dug out and repoured.

In most cases, the title company will insure over the violation for a fee. This coverage would protect you in the event you suffered a loss as a result of the violation, as unlikely as that may be. I'm surprised the title company would not cover this.

Q. I own a home in a rural community. Me and four of my neighbors share a well. The well has always worked and our only expense over the six years I have been here is about $200 worth of maintenance on the pump a few years ago, which we all split.

The pump is very old and is now failing. We have other problems with the well also. We either need to spend quite a bit of money to repair the pump and well or spend even more money to drill a new well. Unfortunately, we can't agree on what to do and to make matters worse, one of the families is having major financial problems and has let us know they cannot contribute anything.

Any suggestions on how we resolve this? I vote for drilling a new well but I understand not everyone may be able to afford that, so I can live with the repair. But how do we deal with the family that won't contribute?

A. First, determine if a well agreement exists. In most circumstances similar to yours, the parties that initially entered into the shared well arrangement created and recorded a well agreement. This agreement provides for the rights and obligations of the parties to the agreement and may also address remedies in the event a party does not comply with the terms of the agreement.

To determine if a well agreement exists, look at the title policy you should have received when you purchased your property. If a well agreement was recorded, it should appear on your policy. If it was recorded, note the document number and contact the recorders office of the county the property is located in and request a copy.

In the event the agreement addresses your problem, you and the remaining "paying" parties need to decide how you wish to resolve the issue. Perhaps the nonpaying party would be willing to sign a note for his share.

If no agreement exists, things get a bit trickier. Either the parties will come to a resolution on how to correct the problem and how to deal with the nonpaying party, or someone will need to file a lawsuit. Litigation seems counterproductive as the money you spend litigating would probably pay to correct your problem.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, by e-mail to or call (847) 359-8983.

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