Anyone who owns a house or any real estate can expect to eventually be approached by some government or utility company asking for permission to install a buried water, sewer, gas or other line, pipe or tile.
Usually, the government or utility company does not want to purchase any portion of the property. Instead, the request is usually for a permanent right to use a three-dimensional geographic area under the ground.
Practically speaking, the government or utility company wants the right to do three things: dig trenches; install lines, pipes or tiles in those trenches; and cover the trenches. In exchange for that right, the government or utility company will frequently offer the property owner some money. To be binding, such an agreement must also be in writing and recorded in the courthouse. Therefore, governments and utility companies usually present standard form paperwork to affected landowners for signatures.
The standard form paperwork usually explains that the utility company has a permanent right to re-dig on the property if the installed item eventually, someday needs repair. The utility company usually agrees in vague language that it will replace the property to its prior condition if repairs are made in the future. Governments and utility companies love standard form paperwork. And, standard form paperwork is sometimes better than nothing. However, I almost always make three improvements to a standard underground utility form agreement to protect the landowner.
First, if there is a need to repair the installed utility, the repair must be started and concluded within a certain period of time, usually a week. This helps the property owner avoid having his or her property is a never-ending state of construction.
Second, if the installation or repair of the utility line disturbs grass, shrubs or flowers, the government or utility company must reimburse the property owner for the value to replace the grass, shrubs or flowers to landowner satisfaction. Sometimes, governments or utility companies agree to replace those items themselves. However, giving complete discretion to someone other than the landowner can result in inferior replacements.
If the utility line is located under farmland, insist that the damages to crops be calculated using Ohio State University’s published enterprise budgets for agriculture. Enterprise budgets include reasonable, average statistical estimates of profit, not just reimbursement for the costs incurred by the farmer.
Finally, standard written agreements usually indicate that all trenches will be brought back to grade after installation or repair of the underground line. Anyone can dig a hole and fill it back in, but there can be long-term damage if valuable topsoil (that produces beautiful grass, flowers, shrubs and productive crops) is buried below some hard-as-road clay subsoil when a trench is re-filled.
My third recommendation is intended to ensure that the topsoil is properly replaced on top. The language that I recommend to add to most standard agreements requires that each distinct soil layer be separately removed, segregated, stockpiled and then properly replaced and regraded consistent with the adjacent undisturbed land.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.