Legal Land Issues: Land Easements, Shortages in Purchased Acreage and Buying Land With a Partner

The Back to the Land column covers legal land issues, including shortages in purchased acreage; changing the location of an easement; buying land with a friend; a family feud over logging income and a shared contract.
By Jean Vernon
June/July 1997

I am a real estate broker who deals exclusively with country land. There are just about as many questions regarding land ownership as there are landowners, and knowing what to do about a given situation can be difficult to determine.
PHOTO: MOTHER EARTH NEWS STAFF


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A veteran real-estate expert smoothes the wrinkles of land ownership in the Back to the Land column. This issue includes information on land easements, shortages in purchased acreage and buying land with a partner. 

The joys of living in the country are too numerous to mention, and the thrill of buying your first (or tenth) piece of land is unlike any other satisfaction in the world. In the many years I have been addressing the concerns of rural landowners, it has become clear to me that country landowners are even more interested in their real estate affairs than their urban counterparts. Unlike city dwellers, however, they have far too little information available to them, information which could not only make buying and selling vastly easier, but could go a long way toward solving any potential problems or disputes with neighbors. I can't begin to number the instances in which a problem easily avoided grew so troublesome that ultimately the expense of an attorney was necessary.

For instance: When buying or selling real estate how much of your situation should you tell your agent? What about buying with a partner? There are many considerations to co-ownership, and some work in the beginning will go far into the future, helping insure a successful relationship. Should you buy land with an easement over it, or a parcel that is served by an easement? Much trouble arises from easements but often they are a fact of country life and the problems must be dealt with in order to enjoy your land. Did you know that land ownership doesn't always include all of the rights to that land? How can you determine which rights you have or are buying? Often land is bought or sold on a real estate contract. What do you do when things go awry? What should you do with your deed?

I am a real estate broker who deals exclusively with country land. I am also co-owner, with my husband, of a ranch and timber tree farm. There are just about as many questions regarding land ownership as there are landowners, and knowing what to do about a given situation can be difficult to determine. It' s our hope that we can begin a dialogue within this column, so keep your questions coming. The answers will be of great interest to others dealing with similar problems, as well as to yourself.

There is a driveway easement through my land that serves another parcel. The recent purchasers of that parcel treat the easement as if it were their own deeded land, using it for parking, storage, etc., and are careless with their litter while crossing my land. Now they are talking about changing the location of the easement road. Do I have to let them? What can be done about this problem?  

Easements are one of the major causes of contention and hard feelings between rural neighbors, mostly through misunderstanding the nature of the beast. It is interesting to note that easement users often believe they have more rights to the easement land than the actual owner of the land. Some easement users sincerely believe they own the easement land outright. However, in reality there is little basis for this belief.

Easements run with the land. That is, when land is sold the easement is not extinguished; the right to use it goes to the new owner. The easement does not transfer ownership to the land over which it passes, nor does it give the easement user any rights to the land within the easement other than what is spelled out in the language of the easement. Most driveway easements provide for ingress and egress (the right to enter and exit), sometimes include a maintenance agreement, and sometimes also provide for the installation and maintenance of utilities. Unless actually written into the easement description, rights of long term parking and storage are not included. The landowner burdened with the easement (you) retains ownership of the land within the easement and pays taxes on it. You have the right to utilize that land in any way so long as it does not interfere with the described use of the easement, in this case ingress and egress. You may have livestock on it and install necessary gates. Those gates cannot lock the easement user out and in most areas must serve a purpose, otherwise they are considered a nuisance. Easements usually have a specified width and the driveway may meander anywhere within the boundaries of the easement. The easement user may maintain the road but may not move the road onto any other part of your land, nor may the user utilize any more land than is necessary for his purposes no matter how wide the easement description is. You have the right to all production from the land within the easement—crops, for example.

Read a copy of your easement to determine what rights were granted with it. If you have otherwise friendly relations with the new neighbors it might be appropriate to have a chat with them about the problem to keep the situation from escalating into a conflict. If your new neighbors won't listen to reason regarding their use (abuse) of the easement you may want to take a copy of the easement to your attorney (real estate expert, please). Sometimes a letter from your attorney will be all that is necessary to clear up any misunderstanding, but if legal action must be taken you will definitely need his or her advice and help.

When I bought one quarter of a quarter section I presumed that I was getting a full 40 acres measuring 1,320 feet on a side. Now I find that my land is just shy of being a full 40 acres. How can that happen?  

Although the original government survey in much of the midwestern and western states established sections that measure one mile per side, in reality it is not unusual to find sections and their subdivided parts that measure something slightly different, resulting in shortages in purchased acreage. Many factors affect the actual size of parcels that are legally described by the government survey method. The most common of these are: a past survey error, mining patents or other land claims that were established before the original government survey took place, or corrections for the curvature of the earth. You have not been cheated. You have received a full quarter of the quarter section in which you bought your land, even though your section may not have perfect measurements.

My friend who is also looking for land has suggested we buy land together and the idea really appeals to me. Can you offer any advice regarding this type of purchase? 

The idea of buying land together is very appealing for several reasons. Usually the more acres you buy the less you will pay per acre. Two together can often buy much more land than if each bought separately. It is also often efficient to pool labor and development costs on a shared piece of land. There are several important factors to consider before taking such a step, how ever, and you would be wise to consider them carefully.

If you are single purchasers, what will happen in the event that either or both of you marry? If you use your resources to build one home, what will the other partner live in? What will happen in the case of a divorce? If a partner dies, who will inherit, children or the partner? What if one partner has to contend with a severe illness and needs the investment back? Will the the other partner be able to cash his or her equity out and assume the payments, or would the burden be too great? Would both partners then have to sell out? Can new partners be added at a later date? Partners may be in agreement with respect to their ideas when starting out together, but memories sometimes inadvertently skew those understandings. as years go by. To be provable, real estate agreements should be in writing (and that is the easiest way to avoid a lapse of memory anyway).

Weigh every possibility, no matter how remote, before making your purchase. It would be best to draw up an actual partnership agreement. Once you decide on the main points, it would be wise to consult with an attorney, particularly concerning inheritance, as that will affect how you take ownership of the land.

One possibility is to consider dividing the land between the partners at the time of purchase, provided the purchase terms will allow this. That way, even though the land is managed in common, each partner is responsible for his or her own portion. No one knows what the future will bring and if a partner needs cash the one parcel can be sold without affecting the other partner' s investment. If the land is divided it may be easier to borrow against it for building purposes, and if one partner gets into financial difficulties only his or her portion of land will be jeopardized.

Such a division is more easily imagined than made, however, as usually no piece of land can be divided into portions with exactly equal amenities, no matter how large the parcel. When viewing land for sale with a partner you must pay particular attention to the location and rate of delivery of the water source(s). Will it serve more than one owner?

Good luck with your future purchase. When you provide for each eventuality before it occurs you are ensuring a future that holds much satisfaction in owning/working with a partner.

We are getting ready to sell our older home and heard there might be a new law that may affect us concerning the paint in older houses. If so, could you explain it?  

There is indeed a new law regarding disclosure of lead-based paint in almost all residential units built before 1978. To protect people, particularly children, from the hazards of exposure to lead-based paint found in older homes Congress passed the Residential Lead-based Paint Hazard Reduction Act of 1992. The new law was phased in last year and became effective t effective with private homes and rentals on December 6th, 1996.

With few exceptions, sellers, landlords, and their agents must provide information concerning lead-based paint to a buyer or renter before any transaction closes. The information is provided via a pamphlet developed by the government, and any information regarding lead-based paint in the home and/or testing done on the property must also be provided. Lease agreements and sales contracts must include certain disclosure and notification language concerning lead-based paint in homes built before 1978.

Testing by the seller or lessor is not mandatory, but buyers and lessees will get a 10 day period in order to test the premises at their expense if they desire to do so.

There are a few exemptions from this disclosure law, including short-term rentals of less than 100 days, foreclosures, units without a bedroom, and housing for the elderly (unless children live there). All others must comply whether or not a realty agent handles the sale.

This is an overview of the new law. For detailed information and copies of the pamphlet call 1-800-424-LEAD. Your realty agent will also have copies of the pamphlet available if and when you list your property.

Many years ago my parents and seven of their children bought some land on a real estate contract. Now it is time to commercially thin the timber. A substantial profit will be made, but we are having difficulty deciding how to split the profit. Here's why:  

Almost immediately one brother quit paying on the contract and agrees he is not entitled to profit even though he is still on the title. My dad passed away; later another brother quit paying and a sister not originally involved has been paying his share. One sister got divorced and stopped paying, she has now remarried her former husband and they want a full share of the profits. Two brothers failed to keep records of their payments and mother always made up the difference if anyone didn't pay their full share. This has already caused some angry words and is holding up the logging operation until we resolve this. Have you any advice for us?  

Whew! What a mess. This is a classic case of things going awry between partners. Even with families and close friends, memories and perceptions can change through the years, with each person having a different picture in mind. Some suggestions:

Log prices can change at any time and if you were quoted a good price for your timber it might be prudent to allow the logging operation to commence while you are working this out. It could be a few weeks before your first check comes in, giving you time to resolve this.

If profits do come in before a solution is reached it might be helpful to place the money in a separate account, perhaps a trust account. Your two brothers will then have time to research their bank accounts and make a record of their payments. Before your sister and brother-in-law receive their full share the family may want to subtract an amount equal to the payments they missed. You may want to credit a partial share to the sister who made up payments for a brother even though she isn't on title. Yours is a community property state and your mother will probably be entitled to both her own and your father' s share unless a will stated otherwise. Your mother should try her best to reconstruct her payment record for herself and others. The brother who quit paying at the beginning can quitclaim his share back to the family or to the person who made up the bulk of his payments.

Emotions run high under this kind of stress and perhaps these suggestions will help you resolve the problem to everyone's satisfaction. Don't allow it to cause a permanent rift in the family.

Even though little attention was given to written agreements in the beginning, it is not too late to start. Draw up a formal agreement and have everyone sign and notarize it. Be sure to include contingencies for inheritance, divorce, missed payments (if still applicable), and anything else you can think of that may affect ownership. Ail attorney may have suggestions regarding this type of document. Once signed it wouldn't hurt to record this document in the public record. In the future, note down any agreements that are reached between two or more family members with regard to this land (you should always record formal agreements). Years from now such notes and records will help clarify what each person wants and has a right to expect. This will go far in keeping family relationships on a good footing.

Let MOTHER solve your problems before they become headaches. Send Jean your questions to Country Real Estate, MOTHER EARTH NEWS Arden, N.C. or at MEarthNews @ aol.com. 


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