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Environmental Protection & Financial Protection

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Sally was a smart woman.  She got title insurance and proper endorsements when she bought her real estate.  Sally had no idea at the time how smart she was.

It was the perfect property—more than an acre of land where she could have her horse, and live in the nice sized home, comfortably laid out for her and her mother.  Sally did everything right.  Like I said, she got owner’s title insurance and proper endorsements, next she did a survey and started to clear the land for her horse and put up a pole barn.  Then this nice little lady from the DEP (Department of Environmental Protection) knocked on the door.  It was not Avon calling.

“Did you know you’re impacting a wetland easement?” the DEP lady asked.  Sally had no idea…and she had no idea what kind of fines she was facing…and she had no idea how this could have happened in the first place.  Let’s take a look:

Bob had inherited the property from his father, Gary.  He had inherited it properly—after Gary’s death, the estate had gone through probate and ownership had lawfully passed to Bob as the only heir.  But Bob already had a house of his own where he and his family lived.  He was all set, he didn’t need another house, and Bob knew he had the lawful right to sell his deceased father’s house.  What Bob didn’t know was that his daddy had made a deal with the Devil—oops, err, oops—the DEP.

Yes siree, the DEP.  Bob’s father, Gary, had granted a Conservation Easement to the DEP when he built the house.  When Gary went to pull building permits for the house, he’d learned that his land had been reclassified as “wetlands.”

If your land has been designated as “wetlands,” then you can only clear without soil disturbance on the property—that means no stump pulling and no fill or draining.  If you can’t clear it with a machete or a chainsaw, you can’t clear it.

Hard not to disturb the soil when you build a house.  So Gary had made a deal with the DEP:  they would give him a postage stamp lot to build his house, his garage, his drain field—but that’s it.  The rest of his property he had to deed to them in a Conservation Easement.  Once it became a Conservation Easement, he couldn’t touch it, not even with a pocket knife.  As far as land use in a Conservation Easement, there’s no nothing but fines.

Let’s review for clarity:  Once a Conservation Easement is in place, no further clearing is permitted by hand or otherwise—the landowner cannot touch the land, not even with a pocket knife.

Gary did the deal so he could build his house on the land he’d already paid for, but the deal with the DEP was never recorded because Gary died before it could be completed.  So there was no public record of the Conservation Easement, and Bob didn’t know about it so he couldn’t disclose it with he’d sold the property to Sally.  When she got title insurance, the title search didn’t reveal it because it wasn’t in public records.  Gary had done the deal with the DEP, built his house, but passed away before he could get the Conservation Easement recorded.  And by no fault of her own, or the title company’s, that’s how Sally wound up with the whole entire mess.

Any resemblance of these characters to actual people is more than coincidental.  This is a true story.  The names have been changed to respect the privacy of those involved in a very public matter:  landowner rights.

The only good side to this story is that Sally had gotten title insurance with proper endorsements.  Despite the fact that she may have to leave the property that was perfect for her, and find a new place for herself and her mom and where she could keep her horse, Sally will not have to pay the cost to resolve this issue.  By no fault or negligence of her own, the title company, or the seller, the land use restrictions had been violated.

Title claims are not something you hear about all the time (unless of course you’re me), but title insurance with proper endorsements is vital to personal financial protection if you do have a challenge to your ownership.  Conservation Easements can be one of those challenges, especially if not recorded correctly.

Conservation Easements are pretty restrictive on their own, but they can be economically crippling if you don’t know about them.  Just when you think you own your property, Bambi, Thumper, or Flower could claim it because they were given a Conservation Easement!

Guard against undisclosed Conservation Easements and all other flaws in public records by securing your ownership interest with owner’s title insurance with proper endorsements.  

P.S. Beware of Bambi!


Stephen CollinsEnvironmental Protection & Financial Protection

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