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posted: 5/23/2010 12:01 AM

Drainage easement protects the flow of water

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Q. I have the south branch of the Indian Creek crossing my property. During the rainy season, the stormwater comes across my property big time. According to my title insurance policy, the yard, not my house, is in a flood plain. Is that the same? The policy says "it has been determined that portions of the land herein are subject to flood risk, but there is sufficient area above high water on the above lots for building development."

My question is, according to your article, should my plat of survey have an easement for this major water flow. I don't believe it does.

A. Drainage easements are generally created when a subdivision is being developed and it is determined that a natural flow of water occurs through some of the properties yards. The easement is created to prevent homeowners from erecting improvements that would restrict the natural flow of the water.

The fact that water may build on a portion of your lot is not a basis to create an easement. The purpose of the easement is so that one homeowner does not act in a way that is harmful to others or the environment.

The flood plain is land that is below a certain height above sea level, given the location of the property. It would appear that some of your property is above the height and some below. Apparently, enough of your property was above the flood plain to allow for the construction of your home.

Q. We put an offer in on a property that is a short sale. This was over 10 weeks ago. We still do not know if we can buy this house.

The seller's mortgage company is terrible. The do not return phone calls or e-mails and the only thing they ever tell anyone is we have to wait and they are still reviewing the file. Our attorney calls the seller's attorney all the time and all the seller's attorney ever tells our attorney is she cannot get through to the bank and we have to wait.

We are concerned about losing the tax credit if this does not close by the end of June. Is there anything we can do to push this along?

A. I believe I've written on this subject before but given the market today, it is worth repeating. Do not make an offer on short sale property if you have time constraints. Stories of approvals taking three months and longer are constantly being repeated by and between real estate professionals.

I, like virtually every other real estate attorney, Realtor, buyer and seller, are continually frustrated by the short sale approval process. The theories on why this occurs are endless. The inability to obtain information on the status of a short sale is monumentally frustrating to all involved.

If you are not under any time limitations, such as you must be out of your apartment by a certain date or, like the writer, the transaction must close by a certain date to obtain a tax credit, a short sale can be financially rewarding. If you have time issues, think long and hard before becoming involved in one of these transactions.

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