Gentlemen,

In June of 2004 I found a house for lease, in a great location. The owner didn’t want to sell it at the time. She needed to hold it for tax purposes and so in order not to lose it, I agreed to lease it until she was ready to sell. The house was built in 1993 on a lot which abuts to several lots of greenbelt, which is owned by the neighborhood homeowners association and comprises about 4 acres. The back fence has a gate that opens to a path, which cuts through a thicket and leads to the greenbelt. Every day, I go through the gate and down the path, to walk my dog in the greenbelt. When I leased the property, I did so in the hope that I could eventually purchase it and build a pool in the back yard. The owner told me that the fence, which was built in 1993 with the house, encroached “a couple of feet” over the property line. I figured that even if the back fence was a couple of feet beyond the property line, I’d still be okay.

In November of 2006, I was able to enter into an agreement to purchase the house. It wasn’t until the day before closing that I was able to obtain the survey, which showed that in fact the “couple of feet” of fence encroachment was actually 30 feet. There was a 7 ½ foot utility easement and a 25 foot drainage easement, inside my fence. Although I was ready to walk because it now appeared that my pool plans would have to be scrubbed, my wife really wanted to go through with it. We love the house and the location is perfect, not to mention the hassle factor of having to move. So, we went ahead with closing and now I’m trying to figure out if there is a way I can salvage the pool idea.

The articles of incorporation state that no structure can be built in a drainage easement that would impair the drainage. Check. A pool would not impair the drainage. The homeowners association had the lots declared un-buildable to reduce taxes and because of a thicket which extends another 30 or so feet behind the fence, nobody is going to miss the use of the property” which has been inside my fence since 1993.

What can I do? I'd like to think that the homeowners association might be willing to deal, but I've heard so many horror stories about homeowners associations in general that I thought it best to get my ducks in a row before I try to approach them to make my case... Someone told me about “prescription by easement” and I’m wondering if this would apply. Do I have any leverage?

You own the property, and the drainage and the power company own some legal uses of parts of it.

You can build on the power easement, provided you leave room for the power company to get to the lines, and provided that you leave enough clearance as required by electrical codes for the power lines, and the zoning property line setbacks. They also have the right to cut trees in that area to prevent accidental grounding of the power lines. But the drainage easement might overlap the power easement, even though it is not specified as such.

You will have to find out why the drainage easement is there. There could be three causes:

1. It drains your neighbor's property, and he owns the easement.

2. It drains neighboring property, and the government (or the homeowner's association) owns the easement.

3. It is a declared floodplain, and government (or the homeowner's association) owns the easement.

In the first two cases, all you have to do is get a method approved to continue the drainage through your property and around the constructed area. This might involve installing a drainpipe or culvert, or rerouting a ditch.

In the last case, it is a more serious problem. The area is known to be underwater during flooding. You probably won't be allowed to build there, and anything left there there can't be insured. And no electricity is allowed below a safety gap above the high water line in those areas (see below).

There is another fly in the suntan oil:

The National Electrical Code requires certain spacings between ANY power lines and a swimming pool. This includes your service drop. The spacing must be the largest of whatever applies:

A. From the closest point of the pool surface or deck surface:
- to insulated overhead lines not over 750 volts to ground: 22.5 feet.
- to overhead lines not over 15000 volts to ground: 25 feet.
- to overhead lines not over 50000 volts to ground: 27 feet.

B. From the closest point of any lifeguard, observation, slide, or diving structure:
- to insulated overhead lines not over 750 volts to ground: 14.5 feet.
- to overhead lines not over 15000 volts to ground: 17 feet.
- to overhead lines not over 50000 volts to ground: 18 feet.

C Underground wiring may not be under the pool, or under a zone within 5 feet horizontally from the pool. It must be buried at least 18 inches down at farther distances.

An exception is made for 120 volt wiring supplying pool pumps and lights which is grounded and protected by a ground fault circuit interrupter.

The metal parts of the pool must be bonded electrically to the power grounding system in such a way that disconnecting any electric circuitry for any reason does not remove the bond. This includes rebars in the concrete, which must be bonded to the power grounding system and to each other.

One thought is to get a a storable above-ground pool. It is not real property, and can be taken away if a flood threatens. But the electrical spacings are harder to meet with one, because it sticks up.

You will also have a liability problem if children can get to a pool. This will usually mean fencing them out. And the fence must be bonded to the power grounding system if it is metal.