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

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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.

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.