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Delmarva Farmer Columnists

 

Peeling away at property line disputes (Oct. 28, 2014)

Ag Law

By Kim Pardoe Manuelides, Saul Ewing LLP, Partner

Resolving boundary disputes is sometimes similar to peeling an onion. It often requires painstaking research through layers of land records and property use history to determine who legally owns what and where and if the boundary is disputed among neighbors.
This usually takes a team of professionals to coordinate how to resolve offending encroachments in the most cost effective manner. 
Farm property is often passed down from one generation to the next.  Property boundaries between generational neighbors may become a matter of tradition and friendly horse trading more than conforming with legal descriptions recorded in the local land record office.
So what happens when the time comes that you and your neighbor no longer agree on where your property ends and his begins, or when your neighbor informs you that you can no longer use her Back 0 to graze your cattle, or that you can no longer use the old farm road to access your own Back 40?
The starting point for resolving any boundary dispute, indeed any legal dispute, is to get the facts. All real property is deeded. Deeds that are recorded in the local land record office usually are dispositive of who owns what and where, as well as who can access what and where. Deeds contain legal descriptions of the boundaries that in most instances govern where the actual boundaries begin and end. In many instances they also provide for easements for access to other properties that would otherwise be inaccessible to a neighboring property.
The person who conveyed the property to you, though, could only convey such property as he/she/they actually owned. 
In other words, if there is a variance in the property description from one owner to the next, you may legally own more, or less, than you thought. Land surveyors and title attorneys are needed in these circumstances to help you resolve both what property description governs your boundary and how the description actually “lays” on the land. 
But what happens if you discover that in fact your neighbor really does not own all that he claims or if you discover that the old farm road was never recorded or described with enough particularity for anyone to figure out where it should be? 
Property line cases are perhaps more easily resolved than easement cases, assuming that your neighbor has not put up a fence or built a structure across your property. 
In those cases, the survey determines where the line is and you and your neighbor should use each side of the property line as you wish. 
But if the survey reveals that your neighbor has put up a fence or built a structure on your property, you have a few options.  Assuming that the fence or structure was installed fairly recently, in most states, the encroachment is considered a trespass and you can compel the neighbor to remove it. 
Alternatively, you and your neighbor can negotiate an agreement by which the neighbor pays you to either rent the property or you convey it to the neighbor outright. 
If you take the alternative approach, your lawyer and surveyor will help you record the transaction and the new boundary in the land records. 
In Maryland and Delaware, if the encroachment was installed 20 or more years ago (15 if in Virginia), you may be out of luck. Your neighbor may have acquired the property by what is typically referred to as adverse possession. 
Easement and right of way access can be more difficult to resolve in the absence of a clear description of the access location in the chain of title. 
Most states will not permit a party to convey property that is legally landlocked.  Accordingly, even if your deed makes no reference to allowing your neighbor access to property behind or adjacent to yours, if the only way to access the property is across yours and the neighbor has been doing so for several years, it is likely that a court will determine that you must continue to allow the neighbor to cross your property. 
The right of access — in this case an easement of necessity or an easement by prescription — is not unlimited, however. Your neighbor must only use that which has historically been used and may not expand the use.
If you find yourself in this situation and you believe that your neighbor is over-using the easement access, you should negotiate with your neighbor detailed terms of the easement, i.e., where it is, who is required to maintain it, how heavily it can be used, etc., and then have an attorney draft the agreement together with a metes and bounds description of the location for recordation. 
If you and your neighbor cannot agree, you will have to have the issue resolved in court. 
Boundary disputes can become quite contentious, particularly when property has recently changed hands and neighbors do not know one another, the new neighbor decides to put up a fence or the neighbor decides to change the use of the property from its traditional use.  In the absence of an owner’s title insurance policy that may provide legal assistance in resolving the dispute, legal and expert fees will quickly add up.
Work with your attorney and your neighbor to resolve the matter as expeditiously and cost effectively as possible.
(Editor’s note: Kim Pardoe Manuelides is a partner in the law firm of Saul Ewing, LLP, who focusses her practice on solving legal issues and concerns of the agricultural community.)




Conservation: What’s in it for me? (Oct. 28, 2014)

Keeping the Farm

By Tim Garrahan, Farm Bill Program Manager, Natural Resources Conservation Service, Delaware

If you own or manage farmland or forest land, then the newest farm bill conservation programs can help you address and improve natural resource challenges on your land. The Environmental Quality Incentives Program and the Agricultural Management Assistance program offer technical and financial assistance to landowners for conservation planning and implementation of practices to improve and protect natural resources. Interested producers are encouraged to sign up for assistance in FY 2015 by the first application cut-off date of Dec. 19.
EQIP is a voluntary program that provides technical and financial assistance to help plan and implement conservation practices that address natural resource concerns to improve soil, water, plant, animal, air and related resources on agricultural land and non-industrial private forestland. In addition, EQIP is designed to help producers meet federal, state tribal and local environmental regulations. Contracts range from less than 12 months up to 10 years in length. Last year, EQIP provided more than $6 million through 224 contracts to Delaware’s agricultural producers.
NRCS staff can help landowners and operators sort out their EQIP options. Some of the top practices EQIP offers in Delaware include: Heavy use area pads; waste storage structures; energy; irrigation water management; cover crops, and more.
Passage of the 2014 Farm Bill resulted in changes to EQIP which included folding the former Wildlife Habitat Incentive Program into EQIP; increasing the payment limitation from $300,000 to $450,000 and adding Veterans to the list of farmers eligible for increased payment rates and advanced payments.
Also administered by NRCS, AMA provides technical and financial assistance to agricultural producers to voluntarily address issues such as water quality, water management and erosion control by incorporating conservation practices into their farming operations.
Conservation practices eligible for funding include, but are not limited to, nutrient management, cover crops, poultry windbreaks, manure storage, composters, conservation cover and high tunnels.
Interested applicants are encouraged to request conservation planning and technical assistance from a local NRCS field office to help with the development of a conservation plan. NRCS will evaluate each application, with higher priority given to applications that use cost-effective conservation practices, address local priorities and provide the most environmental benefit.
Producers can sign-up for EQIP and AMA at any time throughout the year; however, NRCS establishes application “cut-off” deadline dates for evaluation and ranking of eligible applications. Those interested in applying conservation measures soon should sign up before the first deadline of Dec. 19. Cut off dates continue on the third Friday of each month until May 15, 2015.
To be eligible for EQIP or AMA, an applicant must meet the minimum eligibility requirements:
An applicant must be currently engaged in agricultural or forest production on eligible land; be an individual, entity or joint operation; have documented control of the land (for the term of the contract); and have an average adjusted gross income of $900,000 or less annually. 
Eligible land must be ag land, nonindustrial private forest land, or other land on which ag products, livestock, or forest products are produced; land must not receive other USDA program payments for the same conservation practice; land must have an identified natural resource concern which NRCS can address; must be in compliance with highly-erodible land and wetland compliance provisions; and must be privately owned.
Publicly owned lands are eligible only if the land is leased or rented to an eligible agricultural producer.
If you’re a farmer or forest land owner and interested in EQIP or AMA, you’re encouraged to call or stop by your local NRCS field office. A planner will discuss with you your vision for your land, the conservation planning process, and how to apply for financial assistance.
To find out additional information on EQIP or AMA, visit www.nrcs.usda.gov, click on the Programs tab. Or, contact your local USDA Service Center using the locator tool at http://offices.sc.egov.usda.gov/locator/app.