Uncategorized

This time, the law forbids mowing

MoCtyPlanningWe've ranted many times about laws that force homeowners to have lawns, and equally ridiculous laws requiring them to water their lawns – all summer, even in the desert.  (We couldn't make this stuff up.)  Homeowner associations are notorious for having outdated but staunchly defended landscaping rules, and when residents run afoul of them the response always seems to be: they knew what they were getting into when they bought their house, so tough titties!

Now we come to a law that's the complete opposite, yet leads to very similar homeowners frustrations and the questionable claim that home buyers knew what they were getting into.

According to this story, the Sandler family has lived in a community in my county for five years, during which time they've used their back yard like most people do – growing a small flower bed, mowing their lawn, and in general enjoying "their little patch of suburbia."

That is, until they got a letter from the county informing them that it was illegal for them to mow the grass in their back yard.  Also illegal?  That raised garden bed, their portable basketball hoop, a canoe and about 100 square feet of their asphalt driveway.

According to the letter and the plat you see here, "almost all of their back yard is part of a forest conservation plan agreed to by the property's previous owner. An ironclad addendum to their deed, attached for perpetuity, forbade them to mow, dig, erect fences or pull weeds. The land was legally required to revert to its wild state."

Should they have known?
The Sandlers say they were never told that the lot carried such strict protections, though their contract of sale did say their property included "land dedicated to a conservation easement as part of a Forest Conservation Plan," and Michael Sandler checked that paragraph to indicate he'd read it. 

But the term "conservation easement" wasn't defined, and the Sandlers now say "Listen, we wouldn't have bought the place if we knew we couldn't use the back yard."  And I believe them.  Of course the builder says that "Absolutely, they knew," and that all the plans showed the easement", although "he could recall no other specific conversations about the protected area." 

 So despite the importance of conservation easements to protect our watershed, I'm feeling pretty sympathetic toward the unfortunate homeowner.  Anybody else?

The duty to inform
The news story points out that "The county now requires conservation areas to be posted with signs that prospective buyers would see as they house-shop" but again, are they told what that means?  Shouldn't the sign and the contract both list all the banned uses of their back yard?  The county seems to think their new Web site that shows easements for every address in the county helps, but I'm not sure how – unless you know how restrictive these easements are and go out of your way to find and avoid them.

Deep within the county's website is a page about easements that leads to (finally) a definition of the kind of easement (Category 1) that the Sandlers have on their property: that it prohibits clearing of any tree, bush, or vegetation; prohibits construction, paving or grading of the ground; prohibits the dumping of unsightly materials (trash, ash, non-biodegradable materials, etc).

What would YOU assume?
If I were the potential buyer of a property that contained a "conservation easement", I'd assume that I couldn't do terrible things there, like dump stuff, apply bags of "Weed and Seed, or remove healthy trees.  And I wouldn't be too surprised to learn that I couldn't construct out-buildings or pour a concrete patio.  But to later be fined for mowing the lawn and having a raised bed?  Surprise!

Posted by on March 14, 2011 at 5:38 am, in the category Uncategorized.
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27 responses to “This time, the law forbids mowing”

  1. Pam J. says:

    I was interested in this story because the houses involved are just a couple of miles down the road from me. I could have made the same mistake as these owners and not asked enough questions about the meaning of the term “conservation easement.” I’ve only bought two houses in my life but in both cases I recall initialing a LOT of things I didn’t read closely or at all. I blame the sales agent who represented them during the transaction. He or she should have seen those words and warned the buyers. But in the end, I guess they can only really blame themselves.

  2. John says:

    I find it odd that a conservation easement can extend so close to a house – it even looks like it overlaps the corner of the top house. How did they ever get permission to build in the first place (or was the easement granted after the houses were built).

    I would have asked all the questions before I went all the way through with the purchase but I most likely would have started out thinking like these people in the beginning.

    Tough titties can hurt!

  3. Tara Dillard says:

    A fairy tale, that land returning to its native wild state.

    Where I live it would be kudzu, poison ivy & Japanese privet.

    It would be an act of civil disobedience & against the law, according to the ‘easement’ to plant natives.

    Garden & Be Well, XO Tara

  4. Susan says:

    I don’t know….this smells an awful lot like “look for new revenue sources” to me. They’ve lived there for 5 years, and nothing they’ve done has been a problem until now? Pretty coincidental that this “fine” is coming due now, in a time when towns, cities and states are scrambling for money. If I were the Sandler family, I’d invest in a good attorney and do some requisitioning of town board minutes and other documents under the Freedom of Information Law. It’s amazing what official bodies will try to hide from their residents, and smoking guns can abound. It would be a costly endeavor, no doubt, but it could pay off big in the end for the Sandlers, and possibly help their neighbors as well.

  5. adam says:

    The words “conservation easement” would have set off red flags in my mind. Easements of any kind are vital to understand when buying property. That being said, it doesn’t seem like a stretch to think a developer may have intentionally glossed over that part.

  6. UrsulaV says:

    Yeesh. I’m sympathetic to the homeowner–conservation minded as I am, that’s gotta be a shocker, and SOMEBODY needed to inform them before purchase.

    I also think the easement is very badly done–not because I’m opposed to conservation easements, far from it, but in my neck of the woods (and I’ll bet Alabama’s pretty similar) if you don’t pull weeds, it doesn’t revert to the natural state, it turns into a blackberry/honeysuckle/autumn olive thicket. Whoever set those conservation terms had little notion of how to actually conserve an area in this day and age.

  7. Hmm. Seems like the county could have gone about this in a manner that generated more trust and good will toward the concept of forest conservation. Now people are going to associate the idea with horsiness.

    I’m for compromise here.

  8. tropaeolum says:

    I don’t have much sympathy. It is the buyer’s responsibility to do the research before signing on the dotted line and writing a check. You can never, ever trust a developer or a real estate agent. They are there to make money and/or they might not completely understand the terms either. Always do your research!

    Is the homeowner getting a tax-break because s/he cannot use part of the land? If yes, I have no sympathy whatsoever.

  9. Aunt Ida says:

    Among all the marketing materials found at a home for sale, I’ve never seen a copy of HOA rules for prospective buyers to peruse and only a few times have I seen a disclosure statement. In my experience, it’s hard to get a copy of those documents in advance of closing. At closing, the buyer has about two seconds to read each paragraph and initial it. And that’s not about to change since disclosing the down side of a property would make it harder to sell.

  10. Gloria says:

    Conservation easements are important to maintain but this kind of action will cause more harm than good. Instead of fines someone should be making sure these people understand what can be done and how to go about accomplishing what can be done.
    It would be interesting to know if the easements were created on site as a condition of developement of the area and why those houses were allowed to be built so close to the easement.

  11. tibs says:

    I would get a copy of the legislation that adopted the easement. It might give actual dimensions. Throwing pretty colors on an aerial map to show the easement area is not that accurate. They might have more usuable yard or less. Are other people getting letters? If not, a lawer will have a good case.

    We have lots of our area that have floweage easements (for dam backwaters) with the Corps of Engineers. Don’t even think about putting anything in it. They pounce and it is gone. Problem is, the easement was obtained back in the 1930’s, over 80 years ago. State law requires title searches for a much shorter period. If it did not get transfered from one deed to the next….Local title companies alwasy check back that far, out of area ones don’t.

  12. Laura Bell says:

    They should definitely check the real dimensions of the easement. I work with maps & aerials & know that very often the scale of one or the other is off, or the photo has been ‘rectified’ in such a way it’s not accurate at that scale.

    I’ve always had a problem with the swiftness with which buyers are rushed through the final signing of purchase documents. You’re handed a five-page document, given a three word explanation , and no time to even scan it before signing. If you do take the time, the officer gets irritable.

    The easement should’ve been posted with basic “do’s” & “don’t’s”. The buyers should have asked more questions when they saw the easement – but you trust that the people who know what that means will tell you the truth. The seller/developer should have made it very plain to all buyers that this easement seriously limited what could be done on the land they are paying for.

  13. anne says:

    All of these comments are good and address issues I would consider if I were judge looking at this case (and this is exactly the kind of thing that will end up in court eventually). But I would also get the local firefighting authority to come in and evaluate; it seems to me that for safety’s sake, the developers should have been required to create at least a 30-foot setback from the house structure for fire defense. Not to mention health and safety issues with wildlife.

    I also think a good lawyer could make a case for the homeowner here, depending on local and state land use laws. But even more importantly, someone should be looking into the local land-use planning, because if this issue happened once, it probably happened somewhere else nearby.

    The more our population grows out into natural areas, the more this will be an issue.

  14. E says:

    I work for a county in the department that does this sort of work. I wish I could say that this is unusual, but it’s pretty common, especially if the easement was made before computers. Old easements are on paper somewhere, and it can vary depending on which departments make them.

    I always laugh on TV when they show some government person able to zoom in on a blurry face and use sharpening software, or obtain records back to 1863. We don’t have that kind of equipment at ALL. Lastly, sales aren’t made through the county, so no one is necessarily keeping track as property changes hands to make sure everyone knows what they need to know. There are tons of easements out there. Also most places I know do enforcement on a complaints basis. Which is to say, no one is out there checking up on your property till someone calls and complains.

    The best way to inform yourself is to make sure you look up local zoning and property history, for outstanding inspection and easements WHEN YOU DECIDE TO MAKE AN OFFER, not after you sign papers! Get a deed researcher if you are suspicious, or hear the words “easement, code violation or non conforming use”. I definitely feel for these people, but at the same time, no one would like it if there was an extra step built in for county research and disclosure on every property being sold, and the extra fees that would cost, so it remains a buyer beware situation.

    Lastly private developers sometimes create conservation easements in return for building more homes. If you are buying in a tract that was built recently, you NEED to nose around. Also look into the company that built it- are they reliable? Do they have good press nationally or are they known for building houses from styrafoam in swamps with seepage?

  15. Noturf says:

    I am not surprised the victims did not know, however their attorneys should have mentioned it.

    That is what attorneys are supposed to do, define and clarify contracts for their clients before they sign.

  16. Laura Bell says:

    @ Noturf – Don’t know Maryland’s laws re: real estate, but not all states require an attorney’s involvement for a home purchase.

  17. @UrsulaV and others,

    The Montgomery County easement language does specifically permit the removal of “noxious, exotic, or invasive weeds” and explicitly permits the planting of new trees and shrubs but only if they are “native to Maryland”. Not so bad, on balance.

  18. Patrick says:

    Whatever the restrictions are, if the home owner closed with a title company, it is the title company’s responsibility to make sure there are no leans or problem easements with the property at the time of signing. The buyers should have been made aware of the easement at the signing, which apparently they were since he checked the box that said he read it. YThose checks are usually initials. To buy property with an easement and not take an interest in the conditions of the easement before signing is just about as dumb as marrying your first cousen. There is a lesson in here. Read before you sign, if you don’t got the time, don’t drop the dime…

  19. Anon says:

    I agree that the owners were dumb about this. Conservation easements have been around a long, long time and used as a sales tool. You can’t tell me that they didn’t fall for the pitch “Come out on my deck and see my wilderness!” Homeowners with these easements also usually get a tax break compared to other properties without easements. I find it hard to believe they didn’t know about that.

    This is nothing more than another ‘O woe is me’ whine from the cul-de-sac crowd.

  20. KennyS. says:

    Someone said “If you do take the time [to read the papers], the officer gets irritable.” So what? If I’m paying a lot of money for a house I’m going to read what I’m signing. I don’t care if someone that I don’t know and will never see again is irritated. When my brother bought his house we sat there and read everything. When I bought a new car the finance guy said “Most people don’t bother to read the papers. Have you had a problem?” and I answered “No, because I don’t sign anything wthat I haven’t read”. Having an easement should ring alarms but maybe the owner didn’t know what an easement was.

  21. Michelle D says:

    Buying a home and property is usually the most expensive investment that you will ever make in your entire lifetime.
    Why wouldn’t you fully research your investment by reading your title?
    Personal responsibility. You own the duty to inform yourself.
    BTW, property easements are extremely common and are not hidden away in any fine print. They sit right along with all the other information such as your CCR’s and any HOA info.
    The only thing that these people are victims of, is not taking the time to read their paperwork thus informing them of the context of their property rights.

  22. Laura says:

    The easement looks like it was established to protect wildlife habitat (mature trees near a stream) – something very worth protecting. It would have been nice if the design of the subdivision had made that clear – by leaving a few mature trees on the lots and setting the homes further from the easement area. Looks like a standard subdivision – land scraped clean and no thought of the special setting. Sounds like the owners didn’t do their due diligence. I hope they can learn to love/appreciate the advantages of being near a forested stream and the cool wildlife that live there.

  23. Woo says:

    I’m with the tough titties crowd, they should have asked what the easement meant. Our natural areas need protecting. It looks like the builder was the first person to violate the easement so I think there is a case for them fixing what they violated but come on…..there’s plenty of space for a vegetable garden in the front yard. Or is that your sod farm?

  24. Gloria says:

    On page two of the story it says that a private land owner with a very large property received permission to divide his property into the extra 5 lots and sell them only if they included the easement.
    The lot buyers promptly hired a builder together and the houses were built.
    So many people had a gander at those easement statements. Are you saying no one discussed them?

  25. I would assume I couldn’t do anything to the part of the property that is in a conservation easement, but then I know about such easements because my inlaws’ property includes one, which was well explained when they built their house. The homeowners here should have asked their attorney what was meant by the phrase “conservation easement.”

  26. Matilija says:

    I suspected this situation resulted from the desire to put too many houses on a given property, as Gloria confirms above. It’s like those parking lots striped for X number of cars, but they’re all marked “compact only.” It satisfies the letter but not the spirit of the regulations.

    The Google satellite map is here. The last house on the cul-de-sac shouldn’t have been built and the easement been confined to the bottom of the lot closest to the stream.

  27. Ayse says:

    No sympathy for the homeowners, here. I was very careful about easements and CCRs when I was shopping for a house, and passed on one house because a drainage easement would have made a good garden design difficult. It’s not as if you aren’t told about these things at all when you sign: they’re part of the disclosures, and you are supposed to read and understand them at the signing. (I got no pressure about that, but we’d also gotten the disclosures up front and I’d had lots of time to read them before signing.)

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