I have nothing but respect and affection for state crews who maintain public roads, summer and winter. I don’t feel the same toward certain road-department policies. Here are two examples.

Some years ago, I owned 400 acres on both sides of a state-maintained road in another state. The one-and-a-half-lane, paved road was at the top of a mountain and faced north. It was steep, narrow and curvy. It had been bench cut into the north-facing bank, which shielded it from winter sun. As a result, snow piled up and up, and melted slowly. I’ve seen snow there in May.

A week or so after I bought it, the county superintendent of the state road department appeared unannounced in my frontyard and offered me a roll of fence wire. I had no idea what he was talking about. It turned out that his crews routinely pushed the accumulated snow over the bank and into what was now “my fence.” As a result, the fence was damaged beyond repair. They had no other place to put the snow. The roll of wire might have been worth $100. The damaged fence line was about 800 feet, maybe a $1,500 job to take down and build anew.

I wanted to build a new fence so that I could pasture cattle behind it. I needed to know the width of the state’s easement, and I wanted to make some arrangement to let the road department remove snow without damaging a new fence.

The road department would not tell me the width of its easement. Nothing was recorded.

I was willing to sell the state a strip of land between my new fence and their easement that would give them space to pile snow. I was willing to have them condemn a strip by eminent domain and accept fair market value, the amount of which was, maybe, $1500. I was willing to install gates in the new fence so that they could dump on my land without pushing over the new fence. I was willing for them to repair damages at their expense each spring. I was willing to consider any solution that would work for both parties.

Having acknowledged state responsibility for damaging the old fence each winter, the county superintendent refused to do anything different. He said to me, “We can do whatever we want with all of your land.” He said to me that I should “give the state the strip of land.”

I was outraged at this taking—and this attitude.

I went to court. I wanted the state to stop damaging my property. I wanted to build a fence on my property. I wanted to know the width of the easement claimed by the state.

The highway department did not produce a single document showing a right-of-way easement, road design, survey or anything else. Nothing. They refused to tell the judge the width of their claimed easement.

First, they claimed they owned an easement of whatever dimension they wanted by adverse prescription or adverse possession. They backed off this argument when I asked whether stealing was official state policy. Then they claimed that the previous owner more than 60 years ago had given them permission to “use whatever land they needed for the new road.” Fine, I said, permission is a license, which ends when the property is sold or the death of the person who granted it in the first place. Permission does not run with the land. Permission means that they cannot obtain the easement by adverse prescription or possession.
Their final argument was that the state had a right to do whatever it wanted in the public interest, including taking my entire 400 acres, and had no responsibility to compensate a private landowner for any damage they caused in keeping roadways open for the public. I could not stop the state from damaging my property year after year, nor could I get them to compensate me for the damage.

The judge said in a preliminary hearing that he would not allow me to introduce into evidence the fact that the superintendent had offered me a roll of wire or any of the statements that he had made to me. He refused to acknowledge that the settled law of permission — the state’s claim to the easement in the absence of any other — ended with the sale of the property or the death of the party granting permission. It was clear that I would lose in this judge’s court.

To have a chance at winning, I would have had to appeal to the state supreme court. I figured that the supreme court would see the interests of its state highway department as superior to those of a private out-of-state landowner, just as the local judge saw it. It would have cost me a lot of money to kick the case upstairs on principle for the purpose of losing the principle. So I dropped the suit, and eventually sold the land to a couple who didn’t care about the fence or the principle.

My wife, herself a county attorney, told me at the beginning to not start with them. “You won’t win,” she said. “The facts and the law won’t matter.” A local lawyer who talked to the judge told me that they couldn’t let me win this case owing to the precedent it would set. The precedent being—the state should pay for takings and damage. Imagine!

As you can see, I’m still enraged over this.

A couple of weeks ago, I noticed that the state road folks were spraying their easement to control vegetation and had consistently exceeded their width—by 20 feet in some cases. I don’t object to spraying on their easement, nor do I object to controlling vegetation on their easement. I do object to having them kill trees that are not on their easement, that is, trees that are mine and have value.

Doing something with a state road department on this kind of matter is an expensive, time-eating, frustrating and quixotic exercise. I am less angry about the second incident than the first, because I didn’t invest in fighting it.

I am a bad citizen, but a more pragmatic one.

Any property with state road frontage involves state maintenance. Buyers are vulnerable to surprises, and owners are vulnerable to arbitrary policies that cost too much for a landowner to correct.

First, it came burdened with a conservation easement that prohibited any residential construction. I could live with that in a timberland investment. Second, however, was disclosure that it had no legal access. Is being landlocked a deal-killer?

Well, like so many other things, it depends on the particulars. These no-access deals can be winners or absolute disasters. Only thorough research before submitting a contract will show you where on that continuum you’re likely to land—and even then it can be chancy.

The buyer looking at such a property needs to involve in the pre-offer scoping stage a local real-estate lawyer whose judgment he trusts. You need to be convinced that your claim for an easement will prevail. I’d stop pursuing a property if my lawyer told me the odds in court were 80-20 in my favor—not good enough. Losing this type of case means that you are out the legal costs, still landlocked and probably unable to sell.

On the other hand, I’ve bought landlocked property in another state, negotiated an access easement with the neighbor and made a good profit on the sale of the timber and land. I made sure to get the easement agreement worked out on paper before making the purchase. An access contingency might also be used. Had the adjoining owners not been receptive to my offer, I would not have bought that property. I had no interest in getting into a fight with them.

The general principle in real-estate law is that private property cannot be landlocked, that is, denied reasonable vehicular access from a public road. But states and their courts differ in how this principle is interpreted, and several situations can exist that modify the rule. Things can also get complicated when you are seeking an easement over public land or land that is improved or occupied.

The landlocked party can bring suit against one or more neighbors claiming a right to obtain an access easement by necessity. A court will decide which neighbor (s), if any, should be burdened with this easement, usually by looking back through the deeds to determine the origin of the landlocked tract. An easement would typically be granted over the property from which it came. There are, however, always exceptions.

The landlocked party does not have a right to force an easement over his most convenient route to his property. The easement awarded in court should be that route most justified by the property’s history, which may or may not be the cheapest or easiest for the landlocked owner.

Pre-purchase scoping of the particulars is essential. The lack of an easement may indicate a long-standing dispute between adjoining property owners. This may be a matter of personalities, or it might indicate an absolute refusal by one or more landowners to sell an easement at a fair price to anyone. I’ve run into a situation where the neighbors refused to sell an easement as a tactic to force the landlocked party to sell his parcel to them at a steep discount. The lack of access may also suggest a thorny legal war that needs to be fought, but no one ever wanted to fight it.

Still, you may find that the adjoining neighbor will sell an easement to you, but not to the current owner. That’s an opportunity.

The buyer has leverage over the adjoining landowner to the extent that the law will award him the easement if he seeks it in a lawsuit. If everyone agrees that the buyer will win in court, why would an adjoining owner go to the expense of a losing lawsuit? All I can say is that individuals do not always act on what is their obvious economic interest. I’ve seen both anger and pride trump logic and money.

If you and your lawyer are convinced that the court will rule in your favor, I’d approach the landowner through your lawyer to see whether an easement can be obtained without a fight. Make sure that the easement is sufficiently wide for your purposes; and figure out who is responsible for its maintenance.

The buyer needs to pencil out a couple of different scenarios before submitting a contract to the seller of a landlocked tract:

Easy Resolution. Easement is purchased for $X; easement is developed for $Y.

Skirmished Resolution. Adjoining landowner resists, but ultimately settles. Add in lawyer’s fees.

Lawsuit. This can get very expensive. You may not get the easement you want.

Any deal that predictably involves an unpredictable lawsuit is one I would avoid. The Easy Resolution is likely to be profitable, since you will be getting the parcel at a discount.

And the Skirmished Resolution…well, that’s a deal that just depends.

I’ve seen buyers fall under the spell of buying repeatedly over four decades. The closer they get to closing, the more they want the property…and the more agreeable they become to either not tieing up loose ends or tieing them into a knot that later binds them.

Here’s one example.

A couple in their mid-30s decided to buy a second-home farm. The house was appealing. It came with several hundred acres. It was secluded. It had views. It would be fun trail-riding the horse that she intended to keep there. They liked the county. The neighbors seemed nice.

The problem was that the farm was about a mile back in from the county road. The “back farm” had been part of a larger holding. When the front part was given to kids, then grandchildren, in several parcels, the front road into the “back farm” was never protected with a recorded access easement. Successive owners of the front parcels just let the owners of the “back farm” use the road that crossed them. Its use was never adverse to them, never against their wishes.

The “back farm” was also accessed by a very rough two-mile jeep trail that came in from the opposite direction, over a mountain. It was mainly used in hunting season. The “back farm” had a recorded easement for the jeep trail.

The young buyers were good negotiators. Their contract provided for a sales price that was very favorable. The sellers would use the cash for their retirement. They were happy to sell quickly, given their health issues and need to buy in Florida during the current market dip.

The buyers talked with the three front landowners about getting a deeded easement. Each agreed. Two signed easements; the third did not, but kept saying he would.

The buyers, who had an easement contingency in their contract on the advice of their lawyer, decided to proceed with the purchase in the absence of the third easement. They wanted to close the deal before a higher offer came in. They wanted that farm, immediately.

Their wanting was palpable. They reinforced each other’s mounting desire.

Their lawyer advised them to not go through with the purchase until the third easement was in hand. Void the contract, he said, if you don’t get all three in writing. He said that the third easement might be a hold out, might be a “stick up” for an outrageous price.

The contingency date came. The couple removed the contingency in advance of getting the third easement. They closed. They wanted the farm more than they wanted to wait for the third easement. The farm was pleasure; the easement was pain.

Five months later, negotiations for the third easement continue. The seller’s price is now three times more than its starting point prior to the closing. The end is not in sight.

If the new owners of the “back farm” don’t pay the extortion price, they will have to spend a fortune fixing the jeep trail to make it four-season accessible. It will never be as convenient as the front road. The third easement principal knows this. My guess is that he will sell the easement for about two-thirds the estimated cost of fixing the jeep trail.

This is an example of a buyer’s emotions trumping a buyer’s good sense. In the heat of the chase, it’s hard to keep emotions contained. But the price of not doing so is often discouragingly high. The buyer’s lawyer had no emotion wrapped into the purchase. The buyers should have followed his advice.

1. An easement by necessity prevents certain properties from being landlocked, that is, cut off from a public road. If I were to sell 50 acres at the back of my 100-acre tract and provided no access easement to the buyer, he could get a court to grant him an access easement for a road over me by necessity so that he could reach his 50 acres. The buyer in this example should be aware that the court may not award him the location for a right of way that he wants. Easement by necessity may also be used to gain access to a water source in certain circumstances.

To gain an easement by necessity, the landlocked party must prove that his parcel was once part of the parcel that he wants to cross. In Virginia, at least, property can be landlocked if this cannot be proved in court.

2. An easement by implication is the idea that the owner of a property has a right to a use on the property of another that was “reasonably necessary” for the use of the property when it was conveyed. To establish this type of easement over another’s property, the use should have been continuous and obvious. This can be a slippery idea, and whether or not a court agrees depends on the facts in each case. An easement by implication might be granted to an owner who has used a river ford on another’s land for many years as have his predecessors in title.

3. An easement by prescription, or prescriptive use, is a hostile take-over of a use. It is an implied easement that is established when the party seeking an easement over the property of another proves that he and/or previous owners of his property have used the other’s property continuously for the minimum number of years specified under state law, openly and without the owner’s permission. This claim to use the property of another must be adverse, that is, with his knowledge and acquiescence of a use that runs against his own rights in his property.

The party claiming a prescriptive use need not have paid property taxes on the land on which the use is asserted. Some states may require that a prescriptive use be exclusive, that is, limited to one party; others permit more than one party to claim and benefit from a hostile easement.

If the party claiming prescriptive use was given permission to use the property, prescriptive easement will not be awarded. And a prescriptive easement will not be awarded if the servient tenement — which would bear the easement — has a mortgage.

The party claiming prescriptive use must meet every standard that state law has established. Prescriptive use amounts to a private taking of a right in another’s property, but not a taking of ownership.

Access roads are often the subject of prescriptive-easement disputes. Another example occurs when one landowner fences in land that he doesn’t own. This is called an encroachment. In certain circumstances, the encroachment may be awarded as a prescriptive easement to the party who did the encroaching.

In California, a landowner who has enjoyed a scenic view over another’s property can establish his right to that view by prescription. In most states, scenic views cannot be established by prescription.

If you, a buyer, are told by a seller or his real-estate agent that he has a prescriptive easement to access his property, be aware that the seller may have no legal access at all.

A prescriptive easement comes into existence only upon a court’s ruling. The opinion of the seller and his agent amount to an opinion, nothing more.

4. Public authority (or a private organization with a statutory right) can acquire the use of private land against the owner’s wishes through an easement by condemnation. A township can build a new road over private land by acquiring an easement through eminent domain. Electric utilities can do the same. Owners are supposed to be given fair compensation for their loss.

A conservation easement (CEs) is either donated or sold to a public agency or land-trust organization. Its purpose is to protect or conserve some statutorily recognized environmental value, such as habitat for endangered species, open space, wetlands or aesthetics. Most CEs are being used to limit or prohibit development on undeveloped land and farms.

A CE donor gets a wonderful package of local, state, federal and estate tax benefits for conveying a limitation on some right in his property in perpetuity. A CE’s financial value is determined by appraisal.

A property burdened by a CE is worth less — sometimes far less — than it’s worth free of the restriction. A CE, for example, might prohibit residential development on a 200-acre farm surrounded by suburban housing or prohibit timber cutting on land with valuable timber.

A seller should give a buyer notice that the seller’s property carries an easement restricting its use. Recordation amounts to notice. With an unrecorded easement, a buyer who has no notice and could not have observed the use may be able to free the property of its easement, depending on what kind it is.

Easements can be ended. The holder of an easement can record a release, which gives up his right voluntarily. The dominant and servient tenements can negotiate a termination. An easement can end when the purpose for which it was established ends or the term of the easement expires.

An easement can also be abandoned by its holder or terminated by merger when the dominant tenement buys the servient tenement, or vice versa.

If the dominant tenement changes its usage of an easement beyond what was provided, the servient tenement may be able to have the easement voided altogether. If, for instance, A has an access easement to use a road over B and A decides to rezone his property from agriculture to commercial to allow for a 24-hour ATV racecourse, B should be able to terminate the access easement for A’s new use.

Other kinds of easements that show up in the country include:

• recreational easements, whereby a state gives property-tax breaks to owners who agree to allow use of their property by the public for activities such as hiking, horseback riding, hunting, fishing and biking.
• solar easements, which prevent one landowner from blocking sunlight coming on to an adjacent landowner.
• utility easements for electric-power and telephone lines, and fuel pipelines. These also involve the holder’s right to maintain their lines.
• access to beaches or surface waters
• historic-preservation easement, which grants the right of preserving the interior and/or exterior of a historic building, usually in return for tax deductions. This easement prevents the owner of the property from changing the building’s appearance.

It’s the buyer’s obligation to understand the nature of any easement that exists in relation to land being purchased. The seller may be the single source of information on non-recorded easements. A title search will turn up all recorded easements, but not unrecorded ones.

It’s worth talking to a local real-estate lawyer about these matters before submitting a purchase offer.

Easements are a complicated and thorny area of the law. The facts of a specific case generally drive a court’s decision. If you find yourself with an ambiguous or contentious easement, hire the best local real-estate lawyer you can afford.

The non-owner who holds the easement can be another parcel of land, public agency, utility, individual, business entity or a non-profit organization like a land trust.

A positive or affirmative easement would allow me to use a stream on my neighbor’s property for watering my livestock at a certain spot. A negative or restrictive easement held by my neighbor would prevent me from erecting a line of wind turbines that would ruin his view.

Easements are legally binding agreements, but they may or may not be recorded.

A recorded easement will be found in the courthouse records, and it’s often incorporated into the deed.

Sellers should inform buyers of any non-recorded easement. A buyer should include language in his purchase contract that requires the seller to disclose the existence of non-recorded easements and other non-recorded documents.

Country property often involves an access easement for ingress and egress. Property A is located 1,000 feet from a state-maintained road. Property A is sold to you with an access easement to cross Property B, which lies between your boundary and the road.

Property A is the “dominant tenement” because it has the right to use the land of another; Property B is the “servient tenement,” because it is burdened with this use.

Sometimes these terms will be written as dominant and servient estates.

Access easements do not convey ownership. Property A doesn’t own the land under its access road over B. Property A can’t possess the road, just use it.

Property A would typically have the legal obligation to maintain its access road over B, though the two owners may decide to share the costs.

Five problems can arise with access easements.

The first comes up when the road on the ground doesn’t follow the location of the road in the deed. Property B, the servient tenement where the road runs, may insist that A use the specified location. A may or may not have established the right to use the road where it is, which is likely to have been jiggered around over the years to avoid wet spots and steep slopes. State law and a court would have to make this call.

The second problem arises when the road is too narrow for Property A’s needs.

A ten-foot-wide easement might have been fine for wagons, horses and even pickup trucks, but it is too narrow for big trucks used for logging, concrete and building supplies. Where a deed does not specific a width, a court would likely find the agreed-to width is that which was established when the easement came into existence. If that’s not possible to estimate, the court would establish what a “reasonable width” might have been or, as a last option, what a “reasonable width” is today.

The third problem occurs when Property A uses its access easement in a way that B objects to. This often involves big trucks, lots of traffic and noise. Again, a court would have to determine the definition of “reasonable use” by A over B’s property, but, generally speaking, courts would go along with these types of uses. Property A does not have a right to use B’s property in a way that damages it.

I ran into a situation some years ago where Property A had an access easement over about a dozen other properties, none of which wanted A to run logging trucks over the road through their lands. While A had a perfect right to do so, the threat of a protracted legal squabble with a dozen well-heeled Bs was enough to discourage a buyer.

I own two wooded properties where I am the servient tenement (B) for an access road that dominant tenements (As) have a right to use. I’ve had no problem, but I know other Bs who find constant annoyance in this arrangement. I also know some As who have to squabble with their Bs, who do things like erect locked gates and excavate water bars that prohibit use. When a B (servient tenement) blocks legal access to A, he is committing trespass upon A’s easement and can be sued.

A fourth problem that can come up with access is the use of a floating easement.

This document does not specify a fixed location for the road or limit the width of the right of way. The holder of a floater may be able to claim access anywhere and however he chooses.

The final problem arises when the dominant tenement (A) increases the burden of the access easement on the servient tenement (B) by dividing his property. State laws differ on this issue. Usually, the dominant tenement will be allowed to increase the burden some, say three or four lots instead of one, but not by, say, 20.

An easement — with both a dominant and servient party that runs with the land — is called an “easement appurtenant.” It exists between adjacent parcels of land owned by different parties. The easement appurtenant is held by the dominant tenement and conveys with that deed forever. In addition to an access easement, other possible easements appurtenant in the country are ones that allow for a non-owner to cross a bridge, use surface water or other resources, or tap into a spring.

An easement appurtenant is not a lease. An easement gives its owner the right to use the land of another, but not to occupy it or possess it as a lease does. A lease has a termination date while easements tend not to have termination dates.

An easement also differs from a license. When I give permission to A to use my property (B), it’s a license. I can end it any time. It does not run with the lands of either A or B. It is not perpetual. When either property is sold, the license ends. When either of the two parties who entered into the license dies, it ends. If someone is using your land under vague or disputed terms, you might start down the road to clarification by sending that party a letter granting them a license. It is then up to the other party to establish that they have an easement, not a license.

A personal covenant, which gives another party some right or denies some right in the land of another, is more of a contract than an easement when it doesn’t run with the land of either party. If I agree to let you pick apples from my trees, it’s a covenant, license or contract, not an easement or a lease.

An easement is not a reservation of profit in another’s land or its resources.

A profit is a right to take something off the land, like oil.

An easement in gross provides for an individual right to use another’s land. The right is held by a person or business entity, and does not attach to another parcel of land like an easement appurtenant. Utility and pipeline easements are easements in gross. They allow their holders to come onto the servient tenement to install and maintain their lines.

A landowner can agree to become a servient tenement by granting, donating or selling an easement to a dominant tenement. The easement granted, donated or sold allows the dominant tenement to use the servient tenement in some way, as in the case of an access easement.

With a negative or restrictive easement, the dominant tenement receives some property right in the servient tenement which the servient tenement can no longer use.

In a conservation easement, for example, the servient tenement may relinquish the right to develop residences on farmland to a land trust, which has the authority to prohibit the servient tenement from ever engaging in such development.

A grant is like a deed in that it will be described and conveyed. Most easements that are granted are written and recorded, but not all. Grants are agreed to by both the dominant and servient tenements.

What are the specific benefits to the landowner? Below is a list of eight of the general benefits for considering a conservation easement:
• The landowner maintains control and ownership of the property.
• Each conservation easement is individually structured to meet the needs of the landowner, along with the conservation criteria, and can be structured broadly or specifically.
• The landowner keeps the land and receives payment for the appreciated value caused by development pressure.
• The landowner assures the property is protected for future generations
• The landowner continues to receive income from his/her land.
• The property may be sold and the restriction travels with the property.
• Future generations are assisted in the transfer of the land by favorable estate tax treatment.
• Landowners may gain income tax advantages.

Most landowners are interested in tax advantages when considering a conservation easement. Landowners may receive income tax advantages that include gifting, tax deferred exchanges, and gains used against the basis value. Tax advantages can also assist in the transfer of property from generation to generation and can lower estate taxes for heirs by maintaining the agricultural classification of the land.

A generational transfer may benefit a landowner by lowering the value of the property for estate tax purposes. This happens because after the rights to develop it are sold, the highest and best use of the land is usually agricultural.

Gifting is a using the conservation easement as a donation to the government or to a qualified conservation organization. Gifting is treated as a charitable contribution and results in lower Federal income tax.

A Tax-deferred Exchange is an option allowed by the IRS for landowners who owe capital gains taxes because of the sale of property. This defers paying the tax by purchasing another piece of property instead of paying the tax. Known by several terms, a tax-deferred exchange is often referred to as a Like-kind Exchange or a 1031 Exchange.

The IRS allows a tax exchange for owners who have a capital gain because of the sale of a conservation easement. In my award-winning booklet, “We Create Solutions for Landowners: A Primer on Conservation Easements,” see case study #1 for an example of how this might work for you.

Gains Used Against Basis includes basis as the amount you paid for the property, plus the value of any capital improvements, less any depreciation claimed. If you sell a conservation easement, the IRS will allow you to reduce your basis by the amount of the conservation easement, which may result in you not paying any capital gains taxes. In my award-winning booklet, “We Create Solutions for Landowners: A Primer on Conservation Easements,” see case study #2 that uses this tax advantage.

To take advantage of a Federal income tax deduction, a conservation easement must be perpetual and given to a specific division of the government or a qualified conservation organization. Annually, the division or organization monitors the property to assure that the easement is not being violated.

For more information on conservation easements; land, commercial, and industrial properties; and land and resource management, please visit www.saundersrealestate.com or call Dean Saunders at 1-877-518-LAND.

She’s a lawyer. She has an office building, a sign, a secretary and an old-fashioned barrister’s desk the size of an aircraft carrier’s flight deck.

My usual response is: “Today, I was visited by that slinky woman from Paris, Fifi L’Amour, who whispered French things into my ear as we drank champagne.”

Melissa rolls her eyes. The closest Blue Grass, Virginia, an unincorporated village of maybe 25, has ever gotten to a Parisienne, slinky or otherwise, is a wonderful Dutch war bride who came here some 60 years ago and a couple of Mexican guys who are working for a local contractor.

On the assumption that a reasonable question deserves a reasonable response, I thought I would finally level with Melissa and curious CRE readers.

There is no Fifi. Her real name is Odille and….

I can’t speak for others, but here’s what I do.

I work for land buyers on a consulting basis. This can mean various jobs, including one or more of the ones that follow.

First, I help buyers think through a particular property. The property can be one that I have found or one that the buyer has located independently.

Buyers often find that they can analyze a real-estate purchase by talking it through with a knowledgeable person who’s not emotionally invested in the outcome.  Our conversations focus on questions like these:

What are the property’s individual assets worth immediately, and how confident are we of those valuations?

Which of these assets can we sell immediately without diminishing the core property we want to keep? Are we better off keeping a severable asset or selling it? How do we measure “better off”?

What are the property’s liabilities, and how confident are we of their various costs—cost of doing nothing, cost of partial remediation, cost of full remedy? Are there any minimal-cost remedies available? Is there any way to turn a liability into an asset, say by donating a conservation easement to protect wetlands or habitat from development in return for local, state, federal and estate tax benefits? What liabilities can’t be feasibly or economically fixed? Can we live with that liability or not? (“Not” is a deal-breaker.) What liabilities must be fixed immediately and at what anticipated cost?

What is the seller’s position in the property? How much did he pay? What do we estimate his adjusted basis to be? How much debt does he need to repay upon the sale? Can the seller finance some or all of the purchase? What are his after-tax nets under various offering scenarios? Is there anything the buyer can do to minimize the seller’s tax hit? Why is the seller selling now? How intense is his motivation?

What is the buyer’s position in relation to this property? Does the buyer have — or can he develop — alternatives to purchasing this property? What is the “buyer’s price”—that is, what the property is worth to the buyer in light of the buyer’s resources, the property’s assets and the buyer’s plans for the property. The buyer’s price has nothing to do with the original purchase price, adjusted basis, asking price or appraisal value. The buyer should generally confine any offer to his price or less, except when other terms are especially favorable. How much cash — or how little — does a buyer need to use to make the deal work? How much does he need to finance? Can the seller finance it? Can the buyer comfortably meet the terms of the note?  To what extent can the property pay for itself through the sale of non-core assets? Is there cash flow? Can cash flow be upped and at what cost? What are the tax implications of the deal for the buyer? Are there time pressures working for or against the buyer and/or seller? What is the rank order of buyer’ objectives in the property? What is the intensity with which each objective is held? Are these objectives feasible, given the buyer’s patience and resources?  What is the likelihood of these goals changing over time? Are there conflicts between goals? Are they resolvable? Why does the buyer really want to buy this property?

What are bad outcomes that can happen to the buyer following purchase? What would be the consequences of the worst  outcome happening? What can be done to reduce the impact of each bad outcome?

What information does the buyer not know about the property that needs to be known before an offer can be properly priced and submitted?

What needed information about the property cannot be known prior to submitting an offer? How important is that information? No offer should be submitted if the absent information is a deal-killer.

These are simple questions that every property buyer should work through. This approach is not guru voodoo. My experience is that most buyers have half answers to most of these questions at the time they make an offer.

Every one of these questions should be answered as fully as possible before submitting any offer. The research required to answer these questions strips risk out of a purchase and almost always saves the buyer money.

So the first thing I, as a land consultant, do is to get a sense of where the buyer is in terms of evaluating the property, the seller, himself and his plans for the property. I work through the relevant questions systematically, more or less. I get to know the property and the players.

The second step is to identify what information the buyer needs before submitting an offer.

I may be the right person to dig out that information or a specialist — such as a consulting forester, minerals economist, agricultural expert or site planner — may be needed. I’m pretty good at finding good people to help clients.

I’ve found that my experience as a reporter is invaluable in researching real estate.

Unlike other types of investments and business ventures, real estate can usually be figured out with a high degree of confidence.  It’s handy to have a reporter’s persistence in asking questions along with the ability to judge and integrate sometimes contradictory information.

The third step involves checking off the answers to specific issues, problems and questions that most land purchases raise. I’ve listed just a few of the questions  buyer and I routinely ask and answer prior to submitting an offer:

Confirm acreage to be conveyed. If no survey is available, run the deed’s calls through a deed-mapper program, which will show deeded acreage and boundaries on a topographical map. Do not rely on acreage figures found on tax maps or in tax records.

Determine whether the boundaries in the deed align with the boundaries on the ground. Have a surveyor walk the boundaries if necessary. If a neighbor is encroaching on your seller or the seller has fenced in part of the seller’s land, the buyer will need to either figure out a resolution to the problem or live with it.

What kind of deed will the seller use to convey the property to the buyer? What kind of deed was used to convey the property to the seller? A general warranty deed provides the most protection for a buyer. Lesser deeds are sometimes appropriate.

Is the property being conveyed in fee? Are all the rights contained in the land – surface, minerals, timber, water, wind, etc. – part of the deal? Anything short of fee is likely to cause problems for the new property owner in the future.

If minerals have been sold or leased, determine the likelihood of development…and the implications of that for the surface owner. If the owner leased the minerals, is he selling his interest to the buyer or retaining the minerals in his own name? (As the surface owner, you will not benefit from the development of sold or leased rights held by others.)

What kind of easements, if any, run with the land? An easement is the right of one party to use the property of another. Deeded easements will be in the courthouse records. Some easements are not recorded.  The owner of the property cannot abrogate a deeded easement, though it might be purchased back. The seller might have an easement to use a neighbor’s property or vice versa. Easements usually involve roads and utilities.

Each state defines the conditions under which an easement can be legally established by another against a property owner’s wishes. Such easements — easement by necessity, easement by prescription — have to be adjudicated. The opinion of a real-estate broker or lawyer does not establish an adverse easement.

Conservation easements have either sold or donated one or more rights in a property for environmental purposes. The most common is the donation of a partial or full right to develop a property for housing or commerce. Significant local, state and tax benefits are given to donors of these easements. I almost always advise my clients to not buy land burdened with a conservation easement; I may advise clients to donate a conservation easement on land they own.

Determine the value of individual assets that might be sold, donated or leased without significantly reducing the value of the core property the buyer wants to keep. Merchantable-timber evaluation requires a consulting forester to do a walk-through or cruise. An appraisal might be needed for a house the buyer plans to sell. These valuations also establish and divide the new owner’s tax basis among land, minerals, improvements, timber, conservation easement and so on.

Fourth, clients will sometimes ask me to suggest contract terms for their local lawyer to consider in developing an offer. I usually advise buyers, for example, to include language that asks sellers to disclose any material defect in their property and its improvements of which they are aware and disclose any boundary disputes. I also suggest that language be included that asks the seller and any agent involved to keep the terms of the buyer’s offer confidential and not reveal them to other buyers.

Fifth, I establish a consulting relationship with the buyer whereby I provide information, advice, evaluations and counsel that’s not invested in any particular outcome. I’m not a broker or agent, so I never have an agency relationship with a client whereby I represent the buyer. I don’t offer brokerage services, negotiate on behalf of a client, hold money, list property and buy or sell on behalf of a client. I’m very careful not to practice real estate without a license; and I’ve chosen to work as a consultant, not as a broker. Accredited Land Consultants are licensed brokers and agents who specialize in land.

I was once asked what qualifies me to do what I do. It’s a fair question. I’m good at solving problems and looking analytically at complicated issues. I’ve been an arbitrator for 24 years which has taught to me how to dig out facts in contentious circumstances and not become personally invested in a particular outcome. I often tell clients to forget about a property we’ve researched…because our research has shown us something to make us want to use the buyer’s money somewhere else. I’m also good at boiling down complex issues into simpler questions that a buyer can answer yes-or-no. I’m not sure what that skill is called on a resume. I’m good at research and writing, which is what I was doing until I moved to a farm in Virginia’s Highland County, population 2,500.

One other qualification deserves mentioning. I was voted by my high school classmates as second funniest. Fifi and Odille have always been impressed with this honor.

Since all property purchases are different and no Consumer Reports exists to simplify making choices, each buyer must dig out the story of a seller’s dirt.

This research is the responsibility of the buyer—not the buyer’s lawyer, not the agents involved, not the buyer’s lender or appraiser and not the buyer’s third cousin by marriage who was a real-estate agent 20 years ago.

The point of spending the time and money doing pre-offer research is to gather reliable information from which to propose a sensible price and terms.

I advise buyers to do most of their due diligence in advance of making an offer rather than propose a 90-day study contingency. Advance research gives the buyer a fact-based offering price, not an approximate stab in a hostile dark.

Deals have a better chance of getting done when the offering price is as hard as the buyer can make it. A study contingency amounts to a free look for the buyer, and sellers are often reluctant to tie up their properties this way.

Due diligence walks through these steps:

Start with what the seller discloses. Different states require sellers to disclose different types of information. These usually cover “material (important) latent (concealed) defects,” which are items not obvious or readily knowable. I often find that sellers do not disclose significant defects, both the concealed kind and those that are observable but not readily understood.

Some states allow sellers to opt out of disclosure. A seller who chooses not to comply with disclosure may have something to hide. A buyer won’t know this until he’s done with his due diligence.

A buyer can write a contingency into a contract offer that makes the sale depend on the seller disclosing all defects in the deed and property of which he is aware.

Where a seller does disclose a defect, the buyer needs to research all of its implications.

Boilerplate inspections. Many standard contracts provide for four inspections. The seller usually pays for three: 1) termite inspection, 2) certificate showing that the house drinking water is safe, and 3) septic inspection that indicates the system is in working order. The fourth is the house inspection that is generally done at the buyer’s expense, although some smart sellers are now providing a current house report as part of their marketing effort.

Buyers should not waive any of these without good reasons.

The termite inspection should include structures in addition to the house, such as detached garages, barns and workshops. Wood-eating bugs don’t confine their dining to the seller’s home.

The water-quality test should screen for heavy metals and chemicals in addition to E. coli bacteria.

The septic inquiry should go beyond determining whether the system is functional. A buyer needs to know whether the house’s grey water goes into the septic system; it may go into a dry well or straight into a creek. Some counties grandfather these non-conforming practices, but more and more are requiring owners, especially new owners, to upgrade to the current standard, which runs both grey and black water into the septic system.

Buyers should also determine whether the current septic permit fits current and future uses. I’ve seen a listing for a four-bedroom farmhouse that only had a two-bedroom septic permit. If the new owner adds square feet or another bedroom, additional septic capacity will be required beginning with the two bedrooms not covered under the existing permit. In the worst case, this can mean installing a completely new septic system at a cost ranging from about $3,000 to more than $20,000.

A routine house inspection generally does not cover asbestos, radon and mold.

Fee ownership. Buyers need to understand exactly what the seller is selling. Buyers want to buy property in fee (also fee simple or fee absolute), which means all the rights the land contains—surface, minerals, water, timber, wind and so on. The buyer needs to know before making an offer whether all rights convey and whether the seller is reserving a right or anything else from the sale.

General warranty deed. This type of deed provides the buyer with the most confidence and security. Special warranty deeds, bargain-and-sale deeds and quitclaims provide the buyer with increasing less security, though circumstances may justify their use. Buyers should determine with their local lawyer what each type of deed means.

Access. Property with an existing vehicle entrance on a state-maintained, all-weather hardtop road is ideal. If no entrance exists on such a road, the buyer needs to check with the state road department to determine whether a new entrance can be put in. A new entrance will require adequate clear sight distance in both directions, which may not be available.

If the seller accesses his property by a road that crosses that of another landowner, the buyer must determine the legality and conditions of this usage. If the seller has a deeded right-of-way easement, the buyer needs to make sure that it’s wide enough for his needs, doesn’t prohibit certain types of uses and sets forth who maintains what and to what degree. Without a deeded access easement, a buyer cannot assume that he has the right to use any particular road into the seller’s property.

If the seller is using his access road on the basis of a landowner’s permission, the buyer needs to understand that he may be denied that permission.

If neither deeded access nor permission is the basis of use, the seller may still have a legal right to drive the road if the history of its use meets certain state-determined tests. Establishing a prescriptive easement against a landowner’s wishes is one of those legal nightmares best left undreamt.

Acreage. Buyers need to determine the acreage a seller can convey based on the deed’s boundary description. A surveyor can run the description through a deed-mapper program which prints out boundary lines and acreage contained within them.

Advertised acreage may or may not be accurate. Buyers cannot rely on acreage figures found on county tax maps and in tax records.

A specific acreage number, qualified by “more or less” in the deed, will usually shield a seller who conveys acreage short of that number. A deed-mapper program will pinpoint the exact acreage the deed conveys.

Boundaries on the ground vs. boundaries in the deed. Fence lines and other functional boundaries may or may not align with boundaries in the seller’s deed. Misalignments are not infrequent, and acreage errors can be significant. It may be advisable to hire a surveyor to walk the boundaries to check congruence.

Easements. The seller may have a recorded easement to use his neighbor’s property, and/or a neighbor may have one to use his. The buyer gets both.

Common easements involve utility lines, underground pipes and roads.

States allow a “hostile” party to establish a prescriptive easement to use another’s property against that owner’s wishes by meeting all the statutory tests. These differ from state to state, but usually require adverse use with the owner’s knowledge that has run continuously for a specified number of years. If the owner has given permission to use his property, prescriptive easement cannot be established.

Buyers should have their lawyer draft language in their offers that requires the seller to disclose any unrecorded easement and any claim of adverse use or ownership.

I generally advise buyers to avoid property that is burdened with a conservation easement. I often advise new owners to evaluate whether donating a conservation easement — with its many local, state, federal and estate tax benefits — might work in their circumstances.

Encroachments and boundary disputes. A surveyor’s walk-around can determine whether the fence lines follow the deed. A seller’s operational acreage may fence in a neighbor’s property and/or vice versa. The legality of any encroachment is determined in court. When both parties know that a fence line is off, a buyer can ask the seller and his neighbor to resolve it, subject to his agreement.

A buyer’s contract offer should ask the seller to disclose any known encroachments and boundary disputes.

Orphan parcels. Country property often contains a patch here or there that can’t be accessed or used. A few acres on the far side of a stream that can’t be forded or bridged is one example. Sometimes orphan acreage can be sold to the neighbor who adjoins it; other times, it just hangs out as a tax burden. Inaccessible land should be priced lower than
useable land.

Floodplain. Flat land that borders a stream or river is usually in the floodplain and eventually floods. Structural damage to floodplain property can range from nuisance clean up to complete destruction.

Floodplain maps are available for purchase at http://msc.fema.gov. The free maps on the FEMA site were not useable. The county’s land-use planner should have these maps, and, in my opinion, so should local real-estate brokers. A standard topographical map will show the elevation of water-side land.

Sellers do not appear to be required to disclose floodplain. Since it’s visible, it’s not a latent defect. Floodplain may be indicated on listing information by an abbreviation that incorporates the letter “F.”

Zoning. Determine the zoning status of the seller’s property and the uses that are permitted within that designation. If a buyer’s planned use is not permitted under the current zoning status, the new owner may or may not be able to get a variance or a conditional-use permit. If rezoning is essential to the buyer’s plans, make it a contingency in the contract. Have the seller apply in his name with the buyer paying the costs.

Environmental issues. Buyers need to be aware that the presence of wetlands and endangered species or their habitats can limit or foreclose developmental uses of the seller’s land. The Army Corps of Engineers has jurisdiction over wetlands and surface waters. The U.S. Fish and Wildlife Service has habitat information.

Other environmental issues to look for include climate issues (drought, hurricane and tornado hazards), water pollution; poisonous or nuisance vegetation; neighboring noise, light, odor or unpalatable activities; dumps of hazardous materials; harmful dusts; an aesthetic sore thumb, like a cell tower in a backyard; earthquake and landslide hazards, among others.

Phase I Environmental Assessment. A buyer may hear this term, which refers to a first-cut effort to identify hazardous substance/chemical contamination of soil and water. A Brownfield Site contains a low level of contamination; a Superfund Site is heavily contaminated. Large farm operations may have small patches that are contaminated by petroleum products or chemicals. Most rural property will not need a Phase I analysis.

Archeological/historical resources. The presence of Native American, colonial, Civil War and other sites on the seller’s property will limit its uses, though increase the new owner’s status.

Assets evaluation. In addition to looking for a property’s warts, it’s equally important for a buyer to figure out the market value of the property’s individual assets—timber, cropland, pasture, improvements, minerals, water rights, farm income, lease potential, conservation-easement potential and so on. Sellers usually price multi-asset properties as a whole; smart buyers total up the value of the individual assets and determine which can be sold or leased without diminishing the core property.

Don’t skimp on pre-offer research. It’s your ticket away from risk.

Due diligence deserves doing.