Thursday, February 24, 2011

Easements in the News

Over at Land Use Prof, Jessica Owley shines a light on a recent article from the Washington Post that discusses the trouble that easements can cause for buyers of land.  The basic story goes like this: In 2003, the Sandler family bought a recently subdivided lot in suburban D.C.  For five years, the Sandlers enjoyed their new backyard - they mowed the lawn, put up a basketball hoop, paved the driveway, and built a tidy little flower bed.  Then, last year, officials from Montgomery County showed up.  They told the Sandlers that almost all of the their backyard is part of a forest conservation plan agreed to by the property's previous owner. Specifically, a conservation easement in their deed forbids them to "mow, dig, erect fences or pull weeds."  The raised garden bed would have to go, along with the basketball hoop and the asphalt driveway. (See excellent infographic here)

Predictably, the Sandler's claim they knew nothing about this easement.  But... There's is a paragraph in their contract stating that the property contains "land dedicated to a conservation easement as part of a Forest Conservation Plan." That paragraph is checked "Yes" and the Sandlers signed the form.  Professor Owley explains that the article is not hesitant about pointing the finger at real estate agents, and then she offers some suggestions on reform. 

What I find interesting about all this are the comments following the article.  I expected that others would chip in with horror stories about the complexity of closing a real estate transaction.  All those pages!  All those signatures!  The reality of the comments is very different - the public (or at least the public that comments on Washington Post articles) has absolutely no sympathy for the Sandlers.  A few samples:

well if they had read the fine print, their lives wouldn't be destroyed. the easement exists for a reason. deal with it.

Hey Sandlers - one more thought. I've got a house floating out in the middle of the ocean that's for sale. Interested?

I have little sympathy for a financial advisor who does not read important financial documents that he signs. When I bought my current home in 1980, I was aware of its attached covenant prohibiting me from ever running a bar or saloon on the property.

How can *anyone* buy a house, the single biggest purchase most people make.... without READING WHAT THEY ARE SIGNING BEFOREHAND?????? That folly is reserved for Hill Critters, isn't it?

A good reminder that even as the law evolves to protect the unsophisticated, there's still a strong "Boo hoo! Buyer beware" sentiment among the populace.

Steve Clowney

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