Louisiana Land Bank

Recland Talks

123

Doing Your Due Diligence

Due Diligence…Verify, Verify, Verify

Doing due diligence on a tract of land you want to buy falls on the shoulders of one individual…you. No one will care about the deal any more than you. Prepare to do your homework. The depths of due diligence, and the items that will need to be discovered, verified and researched, will vary depending on the type of land and its intended use. Let’s consider a few basic areas related to rural real estate.

Due diligence starts with the purchase contract. Read it, understand it, ask questions about it and use it to fully detail the terms of the purchase as they have been negotiated with the seller. Your real estate agent should be diligent to help you document the terms of the deal clearly in the contract. Having the seller and buyer see “eye to eye” on the terms at this stage of the deal will reduce the chances of something going wrong for either party before closing.

Depending on the present use of the land, you will need to verify any number of items that will affect your future use of the tract. Have you seen the CRP or WRP contracts? Have you read the restrictions of the conservation easement, the deed restrictions or other encumbrances that will limit the use of the tract? What about that hunting lease or farm lease…does it match what you were told during the negotiating process? Ask to see the conveyance document on “deeded accesses” if you are unsure about that servitude.

If you plan to clear some of the tract for farming, development or even a new road, will you be clearing wetlands? Will that bridge you need require a 404 from the Corps or mitigation credits? Diligent buyers of farm land look for large diesel spills at wells and near full tanks and check for empty chemical containers dumped in nearby ditches or creeks to alert them of potential environmental quality issues.

Timberland buyers should understand the area markets and mills if buying a tract in a new area. Will the terrain allow complete mechanical harvest or are there acres that loggers just won’t work? Do you have good access to get your timber out?

Your closing attorney should be able to catch title issues that may cause you problems if left uncured, but you may need to specify that he look for items that are critical to your reason for purchase.  For instance, if you’re buying half the mineral rights, does that mean half of 100% or does the seller only own 50% herself? A general title search will not necessarily determine this information for you.

You can verify river stages, flood histories and FEMA flood plain data yourself online these days if the tract is in a marginal elevation area. But you need to do this. Ask your real estate agent to help you identify internet resources if you need them. Confirm the information you’ve been told if you’re unsure.

The list of items to verify goes on and on depending on the tract and its use. The point is to confirm, verify and understand all the major items that will impact you the hardest. The real estate agent is required by law to tell you about all material facts he is aware of that may impact the property’s value and use. The key is “that he is aware of.” Your agent may not know everything about every detail that is critical to you. You as the buyer are ultimately responsible to satisfy and protect your future interests with thoughtful due diligence.

Pat Porter is the broker for RecLand Realty, LLC. For more information about land for sale in Louisiana, Arkansas, Mississippi and Texas, see his website at www.RecLand.net.


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Boundary Trees

One result of land segmentation is more and more land boundaries.  Disputes among adjoining landowners are increasing.  Boundary trees are often at the center of the dispute.  Our law has one set of rules applicable to trees and plants growing on the boundary and another set of rules applicable to trees growing on neighboring property near the boundary but whose roots and limbs extend over the boundary.  La. C.C., Art. 687 and 688.

TREES GROWING ON THE BOUNDARY

Trees and other plants growing “on” the boundary are those in which the boundary line passes through the trunk.  A tree may initially not be a boundary tree but, over many years of growth, grows into the boundary and, thus, becomes a boundary tree.  Once a determination is made that the tree or plant is a boundary tree, the first consequence is that the tree is co-owned, with each adjoining property owner owning an undivided interest in the tree or other plant.

Sometimes a tree growing on the boundary causes a problem for one of the adjoining co-owners and not the other.  For example, assume a 150 year old beautiful live oak tree is a tree through which the boundary line passes.  However, its branches and roots, through no fault of either co-owner, are encroaching upon and doing serious damage to the foundation of a home belonging to one of the co-owners.  May the co-owner who is being damaged demand that the other co-owner remove the tree?  Short answer:  No.  Our law provides that the co-owner who is being damaged has the right to remove co-owned trees that are causing damage, but he must bear the entire expense of removal of the co-owned tree.  The party being damaged does not have a claim for damages against the other co-owner.  The entire cost of the removal, and all damage resulting from the removal, must be borne by the co-owner who was initially damaged by the co-owned tree.  Neither the expense of the removal nor the damage may be shifted to the adjoining co-owner.  However, neither can the adjoining co-owner collect damages for his loss due to the removal of the beautiful tree.

Another question that arises in the context of a boundary of commercial timberland is the status of trees along the boundary.  These trees are also co-owned.  Any boundary that passes through a tree is a boundary tree and, accordingly, co-owned by the adjoining property owners.  One question that arises is whether or not one of the co-owners has a right to cut the boundary tree without the permission and consent of the other co-owner.  The answer is no.  Any cutting, removal or even damage to a boundary tree would invoke the treble damage statute and expose the wrongdoer to the payment of three (3) times the value of the tree and attorney fees.  Further, if the boundary tree has been “marked” and provides evidence of the boundary (so-called “line tree”) then the unconsented cutting may expose the wrongdoer to even greater damages than would be due under the treble damage statute.  The removal of a marked line tree may necessitate an expensive survey to re-establish the boundary, the cost of which may be greater than treble damages.  Thus, landowners cutting or operating near a boundary should take precautions to make sure no trees on the boundary are cut or damaged without the consent of the adjoining landowner.

TREES GROWING NEAR THE BOUNDARY

Many tree trunks are located entirely on one landowner’s property, but near the boundary.  Roots and branches of trees growing near a boundary usually protrude over the boundary into property owned by another.  What are the duties and obligations of the adjoining landowners?  An example with illustrate.

Assume a large magnolia tree is growing entirely on property owned by Mr. Jones.  However, the roots of the magnolia tree have grown across the boundary and protrude into Mr. Smith’s property.  The roots are now interfering with the foundation and plumbing of Mr. Smith’s home.  What can Mr. Smith do to mitigate this problem?  In this case, Mr. Smith has the right demand that Mr. Jones remove the roots and branches that extend onto Smith’s property and are actually causing damages to Smith’s property.  However, Smith does not have the right to demand the removal of the roots or branches unless they are causing an actual problem.  A landowner does not have the right to demand removal, at the adjoining landowner’s expense, unless the protrusions are actually interfering with the use of his property.  A landowner does not have the right, even at his own expense, to cut either branches or roots at the boundary unless the protrusions are causing him actual damages.

What if a pecan tree trunk is growing entirely on Mr. Jones’ property but whose branches overhang onto Mr. Smith’s property?  Neither the roots nor the branches are causing any actual damage to Mr. Smith.  However, Mr. Smith asserts that he is the owner of all pecans that fall on his side of the boundary.  Can Mr. Smith keep the pecans that fall to earth on Smith’s side of the boundary?  Although there is no case or statute directly on point, it is believed that Mr. Jones, as the sole and only owner of the tree and all of its fruit, would be entitled to all of the pecan crop, even those falling beyond the boundary.  Mr. Jones is believed to have a limited right of trespass in order to recover his pecan crop but without damage to Smith’s property.

SUMMARY

Trees or other plants growing on or near a boundary are frequently the source of disputes among adjoining landowners.  Disputes among adjoining landowners arising from tree or other plant growth are more frequent as more and more people live closer and closer together and tracts of land are segmented into smaller and smaller parcels.  If such a problem arises, consult legal counsel if the problem cannot be amicably resolved.

Authored by Paul D. Spillers, Attorney

Theus, Grisham, Davis & Leigh, LLP

3139 Mercedes Drive

Monroe, Louisiana 71201

318-388-0100, Ext. 18

pspillers@theuslaw.com

*** Mr. Spillers has been a client of RecLand Realty, is a landowner and is active in the forestry industry in the south. www.RecLand.net


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Recreational Land Can Yield Tax Benefits

By Paul D. Spillers

 A good wildlife management plan provides more than just recreation and pleasure.  Wildlife can add value to your land investment and tax savings.  Astute landowners are learning the Tax Code provides for tax deductions that can put more money in your pocket each April 15th.  A real world example illustrates how a landowner can enjoy his land and save tax dollars while his investment increases in value.

MR. ROBERT SPARRE:

In 1961 Mr. Robert Sparre purchased a 191 acre farm in Kent County, Maryland for $24,000.00.  The farm included a house in bad repair, a barn, shed, dilapidated outbuildings, and old fences.  The land had been previously farmed, except for  40 acres of trees, a 7 acre pond, and some gravel pits.  The hilly land was infertile.  It had a very low Ph and was deficient in nutrients.   The land bordered on a small creek running into Chesapeake Bay and had the potential to attract ducks for hunting.

Mr. Sparre’s purposes for buying the farm were: 1) to have a retirement home when he reached retirement age; 2) provide a supplemental source of income from hunting fees; and 3) profit from the expected long-term appreciation in the value of the land.  When the land was purchased he was an engineer living in Delaware, two hours driving time away. 

Mr. Sparre’s activities on his land produced consistent losses for almost 20 years.  The losses averaged about $15,000.00 per year.  His total income from engineering averaged about $40,000.00 per year.  Mr. Sparre made extensive efforts to seek the best available advice from various consultants on how to maximize profit from his land and his wildlife activities.  He had soil tests performed and added fertilizer and lime and other needed nutrients.  Food plots were established in an effort to attract waterfowl and upland game.  Waterfowl was raised for release on the property.  Revenue from hunting fees was minimal, though it gradually increased over the years.   The house was repaired.  Hunting revenue increased when Mr. Sparre started providing lodging and meals to the hunters.   Despite his best efforts, however, the expenses were always greater than annual income from the farm.  Tax losses were deducted and reduced the amount of income taxes he paid.  Despite the consistent losses, Mr. Spare continued his efforts to make money on his investment. 

The IRS finally reviewed Mr. Sparre’s tax returns and, considering the consistent losses, concluded he was operating his land as a hobby, or personal pleasure, and not for a profit.   The IRS disallowed all deductions associated with the land.   However, Mr. Sparre disagreed with the IRS and asked the Tax Court to review his case.  The Tax Court agreed with Mr. Sparre and rejected the IRS’ position.  The Court held that he had the “intent to make a profit” and the losses were all deductible.  Sparre vs. Commissioner, T.C. Memo, 1980-45. 

The Tax Court agreed with Mr. Sparre that many years of losses were predicted when the land was purchased.  Mr. Sparre made the investment knowing that he would have to endure the cost of improving the land over many years and creating a good wildlife habitat before he could sell and realize a profit from his investment.  Mr. Sparre maintained detailed financial records that were given great weight by the Court.  He had sought the best available advice from legitimate experts about alternative ways to earn income from the land, including wildlife management, food plots and forest management. 

 At the time of the trial the fair market value of the property, because of price appreciation was more than double the aggregate tax losses that had been claimed by Mr. Sparre.  Appreciation in the property’s value more than covered the aggregate losses.  The Court also noted that the losses were a large percentage of Mr. Sparre’s annual income from engineering.  The losses, compared to his income, made it clear that the farm was a real financial burden, providing an even greater incentive for Mr. Sparre to manage it to produce a profit when the property was ultimately sold. 

CONCLUSION

This case illustrates that a recreation enthusiast is not necessarily barred from tax savings by the hobby loss rules.  If a landowner has a sincere and bonafide intention to make a profit, activities related to wildlife habitat and land improvement can yield substantial income tax benefits.  However, it is critical that the activities be conducted in a business-like manner, including the maintenance of detailed records and obtaining advice from recognized experts.  When motivated by profit, and not something done solely for fun, the Tax Code will yield valuable deductions and tax savings.  Before embarking upon what can be not only a pleasurable, but profitable, venture consult with your tax advisor.  Your advisor can provide necessary, and valuable, guidance.

Paul D. Spillers is a Board Certified Tax Attorney who practices with the firm of Theus, Grisham, Davis & Leigh, LLP, Monroe, Louisiana.  He also is a land and timber investor and has an appreciation for wildlife and its management.  He may be contacted at 318-388-0100 or at pspillers@theuslaw.com.

 *** Mr. Spillers has been a client of RecLand Realty, is a landowner and is active in the forestry industry in the south. www.RecLand.net


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Improving Hunting Land for Sale with Shallow Water Crossings

An inexpensive way to establish a creek crossing on hunting land for sale in order to add value and improve overall access.


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Improving Hunting Land for Sale with General Access and Roads

Making and executing a modest plan to add or improve the overall access to hunting land for sale will help it sell quicker and likely allow it to be be sold for more money.


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Improving Hunting Land for Sale by Preserving or Improving the View

You can add value to hunting or recreation land for sale by making some early improvements to enhance or preserve the view.


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Improving Your Hunting Land by Planting Oak Trees

A short discussion about planting sawtooth oaks on recreational property to improve your hunting land. RecLand Realty at http://www.RecLand.net


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My Baby Girl's First Deer

I still call her my baby even though she’s half way to sixteen. Man, where did those eight years go? Well allright, enough sulking over the fact my sweet pea is growing up too fast and on with the story.

Raylee is your typical, energetic, outgoing, country to the bone, little farm girl. She has always liked going to the camp, hunting with Dad and has been doing just that since she was two years old. She’s a crack shot with a .22 and got her very own for Christmas this year. We’ve also had a Remington 700 Youth 243 with her name on it, just waiting for her to grow into it.

Raylee was determined, going into this past season, that she was going to kill a deer. So my part was to do everything I could to make that happen. We spent the off season keeping feeders full, planting food plots and making sure all the stands were ready to go. But being the somewhat over protective Dad I am, the closer season got the more nervous I got. Reason being was that I started thinking about that 243 kicking or as she says “bucking” a little too much and the scope hitting her in the face. I’ve been told by my better half that I have a tendency to worry too much, plan too much and way over analyze things and that’s just what I started doing…thinking. I thought maybe it would be better if I put her in a pop up blind closer to the feeders with an open sight 30-30. That way there would be no scope to hit her in the face and we would be close enough she would surely be able to hit something. As season quickly approached, I was still fretting and analyzing my final game plan that would insure my daughter could seal the deal on her first deer. Needless to say all my worrying and planning would not make a bit of difference in Raylee killing her first deer.

My family and I spent most of the summer getting ready and getting excited for hunting season to open. It was finally here, Opening Day of the 2009 Gun Season. But instead of having my baby girl in the stand with me and my wife Bridgette out there with our 4 year old son Morgan, I was sitting there in the stand alone. All because I was selfish enough to think I deserved opening day all to myself. Well things could not have happened any better that evening to teach me two valuable lessons.

Since no one was invited to hunt with me opening day my wife decided she would just take Raylee herself on some land adjacent to our house. There was very little thought that went into their hunt. There was no worry about the gun kicking or the wind direction or anything else I would have been intent on thinking about. They didn’t go to the food plots or the feeders and they weren’t even in a blind. They just went hunting together. They walked from our house down our long driveway with Raylee singing and skipping all the way. They sat on the ground just off our drive way on a pipeline. Raylee was on the ground right beside Bridgette so she could help hold the shooting stick for her. Those two were visiting and laughing and sending me texts and pictures. They weren’t there very long when Raylee spotted a small buck that was way too far away to shoot. Raylee was thrilled that she had spotted this buck “all by herself.” Not 30 minutes later, wouldn’t you know it, at about 5:00 I got a call from one of the most excited and proud, parents you’ll ever hear telling me that our daughter had just shot her first deer. So I got off my stand at the lease and almost cut a 30 minute drive in half getting home to see. Raylee was still so happy and excited she couldn’t stop crying and was talking ninety to nothing trying to tell me the story. Once she calmed down they showed me where they were sitting and 110 yards down the pipeline, there it was my baby girl’s first deer.

What an awesome experience, that I didn’t get to share with my little girl, for two reasons. First and foremost I was selfish. I wanted to be in my own little part of the world by myself. Second, if I had been there I would have probably over analyzed and over thought things. I would not have been on that pipeline at that appointed time because that was just too simple.

So guys, the first lesson learned, is that life is too short and your kids grow up way too fast. You should strive to be involved in their lives and to be a part of all those precious moments. Second lesson is that God’s will and perfect plan is always better than even our very best.

“For I know the plans I have for you declares the Lord, plans to prosper you and not to harm you, plans to give you hope and a future.” Jeremiah 29:11


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Improving Hunting Land for Sale with Interior Roads and Crossings


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Boundary Trees

One result of land segmentation is more and more land boundaries.  Disputes among adjoining landowners are increasing.  Boundary trees are often at the center of the dispute.  Our law has one set of rules applicable to trees and plants growing on the boundary and another set of rules applicable to trees growing on neighboring property near the boundary but whose roots and limbs extend over the boundary.  La. C.C., Art. 687 and 688.

TREES GROWING ON THE BOUNDARY

Trees and other plants growing “on” the boundary are those in which the boundary line passes through the trunk.  A tree may initially not be a boundary tree but, over many years of growth, grows into the boundary and, thus, becomes a boundary tree.  Once a determination is made that the tree or plant is a boundary tree, the first consequence is that the tree is co-owned, with each adjoining property owner owning an undivided interest in the tree or other plant.

Sometimes a tree growing on the boundary causes a problem for one of the adjoining co-owners and not the other.  For example, assume a 150 year old beautiful live oak tree is a tree through which the boundary line passes.  However, its branches and roots, through no fault of either co-owner, are encroaching upon and doing serious damage to the foundation of a home belonging to one of the co-owners.  May the co-owner who is being damaged demand that the other co-owner remove the tree?  Short answer:  No.  Our law provides that the co-owner who is being damaged has the right to remove co-owned trees that are causing damage, but he must bear the entire expense of removal of the co-owned tree.  The party being damaged does not have a claim for damages against the other co-owner.  The entire cost of the removal, and all damage resulting from the removal, must be borne by the co-owner who was initially damaged by the co-owned tree.  Neither the expense of the removal nor the damage may be shifted to the adjoining co-owner.  However, neither can the adjoining co-owner collect damages for his loss due to the removal of the beautiful tree.

Another question that arises in the context of a boundary of commercial timberland is the status of trees along the boundary.  These trees are also co-owned.  Any boundary that passes through a tree is a boundary tree and, accordingly, co-owned by the adjoining property owners.  One question that arises is whether or not one of the co-owners has a right to cut the boundary tree without the permission and consent of the other co-owner.  The answer is no.  Any cutting, removal or even damage to a boundary tree would invoke the treble damage statute and expose the wrongdoer to the payment of three (3) times the value of the tree and attorney fees.  Further, if the boundary tree has been “marked” and provides evidence of the boundary (so-called “line tree”) then the unconsented cutting may expose the wrongdoer to even greater damages than would be due under the treble damage statute.  The removal of a marked line tree may necessitate an expensive survey to re-establish the boundary, the cost of which may be greater than treble damages.  Thus, landowners cutting or operating near a boundary should take precautions to make sure no trees on the boundary are cut or damaged without the consent of the adjoining landowner.

TREES GROWING NEAR THE BOUNDARY

Many tree trunks are located entirely on one landowner’s property, but near the boundary.  Roots and branches of trees growing near a boundary usually protrude over the boundary into property owned by another.  What are the duties and obligations of the adjoining landowners?  An example with illustrate.

Assume a large magnolia tree is growing entirely on property owned by Mr. Jones.  However, the roots of the magnolia tree have grown across the boundary and protrude into Mr. Smith’s property.  The roots are now interfering with the foundation and plumbing of Mr. Smith’s home.  What can Mr. Smith do to mitigate this problem?  In this case, Mr. Smith has the right demand that Mr. Jones remove the roots and branches that extend onto Smith’s property and are actually causing damages to Smith’s property.  However, Smith does not have the right to demand the removal of the roots or branches unless they are causing an actual problem.  A landowner does not have the right to demand removal, at the adjoining landowner’s expense, unless the protrusions are actually interfering with the use of his property.  A landowner does not have the right, even at his own expense, to cut either branches or roots at the boundary unless the protrusions are causing him actual damages.

What if a pecan tree trunk is growing entirely on Mr. Jones’ property but whose branches overhang onto Mr. Smith’s property?  Neither the roots nor the branches are causing any actual damage to Mr. Smith.  However, Mr. Smith asserts that he is the owner of all pecans that fall on his side of the boundary.  Can Mr. Smith keep the pecans that fall to earth on Smith’s side of the boundary?  Although there is no case or statute directly on point, it is believed that Mr. Jones, as the sole and only owner of the tree and all of its fruit, would be entitled to all of the pecan crop, even those falling beyond the boundary.  Mr. Jones is believed to have a limited right of trespass in order to recover his pecan crop but without damage to Smith’s property.

SUMMARY

Trees or other plants growing on or near a boundary are frequently the source of disputes among adjoining landowners.  Disputes among adjoining landowners arising from tree or other plant growth are more frequent as more and more people live closer and closer together and tracts of land are segmented into smaller and smaller parcels.  If such a problem arises, consult legal counsel if the problem cannot be amicably resolved.

Authored by Paul D. Spillers, Attorney

Theus, Grisham, Davis & Leigh, LLP

3139 Mercedes Drive

Monroe, Louisiana 71201

318-388-0100, Ext. 18

pspillers@theuslaw.com

*** Mr. Spillers has been a client of RecLand Realty, is a landowner and is active in the forestry industry in the south. www.RecLand.net


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