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Law Offices of Ronald W. Rutz
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July 12, 1999: Points to Consider when Buying Land; Mediation vs. Arbitration

Q: We are wanting to move to the country and are looking at several tracts of land. Any practical legal matters (no oxymoron intended) that we should keep in mind?

A: Now you should never ever ask an attorney to list all of the negatives about anything. You may be so overwhelmed that you will never stray outside the City limits. But here goes the short list in no particular order:

Unless you have direct public access to the property, examine the property ingress and egress easements carefully to be sure that you can do what you contemplate (transport machinery, run water or electrical lines, etc.) and determine who is responsible for the easement repairs and/or maintenance charges. If expenses are shared by several users, is there an effective mechanism to force contribution?

If water is involved, has it been more than ten years since part or all of the water was used or leased? If yes, then the unused part of the water right could be forfeited under the abandonment rules. For ditch water, will the running charges be increased after the sale and do you have enough shares in the ditch or lateral company to open the headgate? Where is your headgate? (What is a headgate?)

Will you have an insect problem, such as from pine beetles, or a weed infestation problem? It would be a shame to buy that property covered with trees only to have many of them dead the next year.

Are there environmental problems such as with oil and insecticide spills, old tires, a dump that the previous owners created, etc.? And even though the ground is barren and dusty, it could be classified as wet lands or even a flood plain. Be certain that there are no threatened or endangered plants or animals present on the property. Otherwise you may learn more about the environmental laws than you ever wanted to know.

Check the fences carefully. Are they located in the right place and in good repair (very expensive otherwise)? Note that cowboys and rural property owners actually spend a significant amount of their time unromantically fixing fences instead of hanging with the female bovines.

Check the property for unrecorded easements i.e., other people using the property, even if not part of the documented paper chain of title. Others may have the right to cross the property, cut trees, hunt, run livestock, mine rock, etc.

Have certain development or conservation "easements" been conveyed away? Remember you are stuck with the property "as is" even though someone back up the chain of title decided to cash in on the then current estate planning fads. Unless properly negotiated, these restrictions last forever and do inhibit land use and depress property values.

Even with agriculturally zoned land, an owner can keep only a certain number of animals per acre, depending on the kind of animal and intended use. Thus, you may not be able to become that ostrich baron after all without securing zoning changes or variances.

What stays with the property and what goes? The storage bin, the well pump, the gas tank, the propane tank, irrigation tubes, livestock panels, etc. may be long gone by the time you arrive after the closing.

Are you getting all of the mineral rights? If not, realistically assess how this will impact what you plan to buy.

Finally, you take your neighbors as they are (just like relatives). If you move near to a feed lot, a lumber mill, an area set aside to store or grind hay, or ensilage pits, you may have problems adjusting.

I hope that all of this was not too boring and that one or two readers lasted this long, reading to the bitter end. But I did promise a number of people that I would touch on this topic in a column at some time. Just be thankful that you did not have to wade through the long list.

Q: What is the difference between mediation and arbitration?

A: Technically a conciliator tries to bring each side together, smooth over problems, and provide its "good offices" in order to give the parties a chance to work things out. (Think of a host or hostess at a bed and breakfast facility.) A mediator is a conciliator but is more active in the process (pushy may be a good common term) and may even suggest possible solutions to the parties. (Think of the person trying to patch up things between people with ruffled feathers at a family reunion.) An arbitrator may act initially as a mediator but with the ultimate authority to make binding decisions and have them enforced such as in court (Think of da judge!).

But be careful because the actual authority is contained in the engagement agreement that the parties initially sign. And I have seen each term defined with the traditional power used in conjunction with another term.

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