Q: My husband inherited piece of rural property with known encroachment and building was to be torn down at buyer expense.
We own adjoining property and own the well which we agreed to 6 months well usage. Has been 2 years. Sister was trustee but didn't include documents pertaining to these 2 issues in closing papers and refuses any help to get figured out. We're on social security and this was supposed to be reviewed by attorney before closing. Per county we can't sell or build until resolved. We are just wanting money from trust to figure out what should have been done to protect interest. Last attorney wanted $5K to start. Is she not responsible? Property was sold $100,000 under appraised value, "as is" with no well rights.
A:
Your post is confusing because you talk about inheriting property then switch to talking about something being torn down at the "buyers" expense. So somehow there are two pieces of property and a Well on one property and the adjacent property has "well rights" of some sort. Not sure what the county wants you to do but I am guessing that you want to sell some parcel of property that has a "well rights" issue and the county wants that resolved. All I am going to throw out here is have you investigated whether the property you want to sell can be sold on the condition that the buyer agree to resolve the well rights issue? Also is it possible just to dig another well on the property that doesn't have a well? ) (I'm not clear if this is water just for household use or a larger need such as to irrigate crops or water livestock.)
As for selling the property, you might be able to do a contract to sell the property where the buyer agrees to buy the property on a date in the future and before that date the buyer agrees to pay for whatever needs to be done about the well so the sale can close. This gets you out of having to come up with $5,000 up front for an attorney (which sounds reasonable) and gets your property sold if that is what you are trying to do. You will probably have to sell the property at a discount to offset the extra cost that the buyer is assuming, so in effect you pay the attorneys fees to get this done but it's nor your money upfront. (The attorney your buyer uses won't technically be your attorney but I think you get what I mean.)
As for what the property sold for before, it isn't relevant. The only thing that is relevant is what is worth to a buyer today less a discount so the buyer will absorb the cost of fixing the well issue as part of the transaction.
When you do this in two steps, first a land sales contract with conditions that need to be satisfied before the actual sale takes place, it should be OK with the county but I can't guarantee that. I don't usually deal with these problems. So take this as a creative idea that still needs to be vetted with the county.
A: PS you can probably structure the contract like an earnest money agreement where the buyer has to give you a deposit of earnest money to get the deal and if the buyer doesn't follow through and complete the sale, including fixing the well issue, you get to keep the earnest money.
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