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Law Offices of Ronald W. Rutz
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December 13, 1999: Year-end Advice; Pitfalls of Buying Marshy Property

Q: Do you have any year-end advice? It seems like everyone else does.

A: Instead of repeating what "everyone else" has to say, I would suggest that everyone who does not have one (and close to 70% of you out there do not) should give a present to their families by calling his or her attorney and doing a Will before the end of the year. It probably will not cost much more than that average Christmas present and unlike the advertising claims of other Christmas presents, it will keep on giving in the future (pun intended).

More importantly, if someone has children with children, but knows that his or her son or daughter is "Will-less", why not give them a gift certificate from his or her attorney covering part or all of the cost of doing the documents (or have it useable by their attorney of choice). Then in case something does happen to both, at least issues of guardianship for the minor children and avoiding a court-supervised conservatorship do not have to be faced.

Yes, I know that this suggestion probably has less appeal than getting a fruit cake or those socks from your Aunt Clara, but you do not have to be viewed as the morbid grinch that stole the cheerfulness and joy from the last Christmas of the millennium if this is a family "bonus" in addition to all those other much more appreciated presents. Then you will be starting the twenty-first century on the right footing.

Q: I am about to buy some property that seems to have a marshy area. Do you think I should be concerned?

A: Indeed I do! You do not want to become mired in the muck of multitudinous frustrations after the real estate closing. Even if it seems that the affected area is small, several federal wetlands and environmentally related statutes could be applicable preventing you from changing the existing condition or force you to restore what was altered. And it does not matter if the property has been formally subdivided or has been used commercially in the past.

Then there is the issue of water law. If the water in the affected area is part of the tributary system, any change that is made which affects the "sheet of water" (such as reducing the flow, increasing evaporation, or creating new uses for the water such as the plants and trees you might plan to locate there, etc.) will probably prompt a visit from the water commissioner or communication from the state engineer's office.

Finally, I am always concerned about plants and animals, whether or not they are classified as threatened or endangered. "Killing" wildlife that inhabit the area could bring its own repercussions.

Thus, spend some time and money to check out the source of the water, how long the condition has been present, the environmental issues, and what kind of water rights are attached to the area. And yes, things were somewhat simpler in the good old days.

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