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Weathervane Farms, L.L.C. v. Kilpatrick

A-0719-04T5 (N.J. Super. App. Div. 2006) (Unpublished)

DEVELOPERS; EASEMENTS—A developer who, after building a home, requires a drainage easement over the property, is required to pay the buyer for such an easement.

A home buyer purchased a new home from a developer. On the day of closing, the buyer “noticed for the first time a drainage/culvert system in his backyard.” After taking up residence two months later, the home buyer experienced damage to his property due to drainage problems. A county governmental agency directed the developer to “provide an engineered situation to correct the erosion and drainage problems located behind [the home] that complie[d] with the State standards for erosion control.” The developer performed remediation work and regraded the home’s backyard, but the home buyer was not satisfied. Ultimately, the developer asked the home buyer “to execute a Deed of Easement permitting access by [municipal] personnel for maintenance of the drainage facility on [the] property.” The buyer refused to execute the deed without being “compensated for the claimed loss in value and damage to his property.” Thereupon, the developer sued to compel the buyer to execute the Deed of Easement without compensation. After a trial, the lower court concluded that the home buyer was entitled to compensation for the value of the easement as well as damages for remediation of the water problems. The developer appealed on the ground that the home buyer “waived his right to seek damages based on his taking title without complaining about drainage problems, although he was aware of a drainage grate on the property and allegedly failed to complain of the drainage problem for several years.” The Appellate Division first pointed out that the issue of “waiver” was not raised before the lower court, but still held the developer’s argument to be without merit. In its view, the home buyer “could not have been aware of the drainage problems at the time of closing and did complain as soon as the problems began to appear.” Thus, according to the Court, there was no waiver.

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