ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, May 26, 1996 TAG: 9605280055
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: MIKE HUDSON STAFF WRITER
note: below
THE LOVERN'S six-year legal battle over a shared septic tank has cost them what they wanted most: a home of their own.
John and Kathy Lovern's home in Roanoke's Garden City neighborhood was a pretty country house, the kind you see advertised under the heading "Charm and Dollar Value."
It had three bedrooms, a front porch with a swing, a wooded lot backing up to the Blue Ridge Parkway.
Matt, their youngest, loved the maple in the front yard - a perfect climbing tree. His brother, Jason, liked hiking the woods out back and coming up on wild turkeys, raccoons and deer.
It was a great place for kids, and a good investment for a family with a modest income.
But a few months after they settled in, they learned something that made them uneasy: They were sharing their septic tank with the house next door - and the tank was on the neighbor's property.
Nobody had told them that when they bought the house. It wasn't disclosed on any of the real estate documents.
Now, nearly six years after they moved in, that once-buried fact has cost them much of what they've worked for all those years: Their home, their financial well-being, their faith that things would always work out.
After years of negotiations and lawyer bills, they've given up their fight to save their home. The septic tank's owner cut them them off the system, and the Health Department condemned the house.
With no septic system - and no way to sink a new one on the narrow lot or hook up to the city sewer system - the sturdy, charming house has been labeled unfit for human habitation.
To top things off, the Loverns still owe a $55,000 mortgage on a house they no longer own.
"A mess, huh?" said John Lovern, a print-shop worker with a quiet, understated manner.
"We're just still numb," said Kathy Lovern.
The Loverns bought the house on Welcome Valley Road in 1990 from the U.S. Department of Housing and Urban Development. The HUD deed said the agency made no promises that the property met health codes or was "fit for any purpose whatsoever."
The Loverns also signed a piece of paper saying they understood that HUD was "unaware of the exact location of the drain field to our septic tank and it has been explained to us that this drain field may extend" to a neighbor's lot. But the way it was worded, the Loverns thought it meant they had their own septic tank.
"We went into it blind," said Kathy Lovern, a medical-office receptionist, "because we didn't even know to look for things like that."
They didn't hire an attorney to represent them or get a home inspection. They thought everything seemed OK.
Then the man who owned the property next door, Clarence Mims, casually mentioned to the Loverns that they were hooked into the septic tank on his property.
It was a shock. But they got along with Mims, and thought they could negotiate a lease on the use of the tank. If he'd let them stay hooked up, they would pay for all maintenance as long as Mims lived in his house, plus half of the maintenance if the property was passed to another owner.
At first, Mims seemed willing. But he was worried about his resale value, so negotiations dragged on for three years. In June 1994, Mims, 75, became ill and died.
Margaret Newman - who the Loverns say had been Mims' caretaker - inherited the property.
They asked Newman for a lease, but she indicated she wasn't interested.
Meanwhile, the septic tank was starting to overflow. J. Emmette Pilgreen IV, Newman's attorney, said it was "inadequate for one house, let alone two," and she was worried the city would slap her with health-code violations.
One evening in March 1995, Matt Lovern, then 10, hopped in the shower before bed. He wasn't in long before he realized the water was up around his ankles. He yelled for his mother.
Newman had cut them off from the septic tank. All the used water was backing up into the house. The pipes burst in the basement. "The biggest mess you've ever seen," Kathy Lovern said.
The next day, the Loverns filed a lawsuit asking for a quick order hooking them back into the system. The judge agreed.
They also sued Newman for $100,000 and asked for a ruling allowing them to stay linked to the septic tank.
Their attorney, Lance Hale, argued in the suit that the septic tank had been put in before the two parcels of land had been split apart from a common parcel. Consequently, he argued, the Loverns deserved an easement - a legal exception that would allow them to continue to use their neighbor's septic system.
But Pilgreen, Newman's attorney, said there was no evidence supporting an easement. "They could never show it came from a single parcel," he said.
The Loverns tried other avenues. They asked about getting hooked into the city's sewer system. But their home was so far from the nearest line city officials told them it would cost $188,000 to extend the lines to them - and the Loverns would have to pay it all. Later, they were told they wouldn't have to pay the cost. But even if City Council approved the extension, it would take years.
They checked to see if they could sink a septic tank on their own property. A health inspector denied them a permit. He said there wasn't enough acceptable soil on the narrow lot for a drainfield, and the lot was subject to flooding.
Pilgreen said, however, that he would have argued in court that they could have installed an acceptable septic system using newer - albeit more expensive - technology.
The Loverns thought they would get their day in court last September. Instead, the judge ordered Newman and the Loverns to meet with a mediator.
That went nowhere. Newman "dug in her heels," Kathy Lovern said.
Newman said last week that she didn't want to comment on the dispute. But Pilgreen said the mediation didn't work because "the neighbors never got along. ... It was a rank, unfortunate situation. I suppose if they had been friends, they could have worked it out."
He said Newman told him the Loverns had "poked fun" at her because of the overflowing sewage on her property.
The Loverns say they never even talked to Newman about the septic tank - it was all done through their lawyers.
The Loverns' attorney kept them posted with letters informing them what was going on. But the Loverns said they had trouble getting Hale on the phone.
On New Year's Day, they wrote Hale and urged him to push for an end to the case. "We have been having a letter-writing campaign for close to a year now and we will no longer tolerate any delays," they wrote. "This matter needs to be settled so that our lives are no longer put `on hold.'''
They'd been trying to sell the house so they could build a bigger one on family land. Would-be buyers signed two contracts on the house, but both fell through because of the septic problem.
On Jan. 4, Hale wrote the Loverns, indicating he was confident they could prove they had an easement.
On Jan. 23, Hale wrote Pilgreen, telling him the Loverns were eager to reach a conclusion.
But three days later, the Loverns say, they got a surprise. Hale wrote the judge and asked to be allowed to withdraw as their attorney. He said the "attorney-client relationship has deteriorated" and they had "reached an impasse on strategy."
The Loverns couldn't believe Hale could get himself a court date for his request - but hadn't been able to get them one. But they didn't oppose the withdrawal. The judge allowed Hale to drop out.
The Loverns decided to give up their lawsuit - and their home.
They called their mortgage company and told them they were giving up the house. They moved out to live with John's parents, then found an apartment.
They have no idea how they'll pay the $55,000 they owe on the mortgage. The lender is advertising an auction of the house "as is." They may recoup some of the debt through the sale, but they don't want anyone to get stuck with the house the way they did. They may have to file bankruptcy.
They wrote Hale that they were "extremely unhappy" with him for failing to take the necessary steps to win the case. They also weren't going to pay him the $3,500 in legal bills they still owe him.
Hale couldn't be reached for comment. But he wrote the Loverns that he was unaware of anything he failed to do in the case. "I disagree with your characterization and have substantial documents of work performed," he said.
However, he said he was willing to offer them a 10 percent discount on their bill.
Newman has unhooked their house from the septic tank again. One afternoon recently, Jason Lovern, 13, looked out his school-bus window and saw a yellow Health Department notice. "This Building Is Unsafe," it said.
Now the Loverns just want the whole thing behind them.
"We were so tired of fighting," Kathy Lovern said. "We were so tired of everything. ... We thought that we would basically be starting from ground zero. We just couldn't start over again at that point. We were ..."
"... beat," her husband said, finishing the thought.
LENGTH: Long : 162 lines ILLUSTRATION: PHOTO: PAUL L. NEWBY II/Staff The Loverns stand in front ofby CNBtheir home in Garden City, which the city has condemned because
their septic tank hookup has been denied by their neighbors. color