Property

The Press Herald has an article about going disputes over access to beaches thoughout the State. The problem is not just on the coastal ocean beaches, but on the lakes and rivers throughout the State. The issues that many landowners face are vague or even inconsistent deeds in their chain of title, as well as a history of case law that often provides vastly different results based on seemingly minor factual differences.

In Maine and Massachusetts, however, oceanfront owners generally own the shore all the way to the low-tide mark, including the beach, rocks and seaweed.

The public does have some limited rights to use private lands between the tides, but only for “fishing, fowling and navigation,” according to the Colonial-era ordinance.

The Moody Beach case, a landmark 4-3 decision by the Maine Supreme Judicial Court in 1989, held that the public does not have recreation rights on private tidelands.

[Below is a Q&A article about the rights of a person selling their land, but retaining the right to hunt on that land, as posted on Village Soup]

Q. I am about to buy a tract of undeveloped woodland in western Maine, but the seller hs just told me he wants me to include wording in the contract allowing him to hunt and camp on the property for the rest of his life. He’s an old codger, so I don’t imagine “the rest of his life” will be that long, frankly. But I have never heard of this kind of thing, and wonder if I could be getting myself into some kind of situation, either with him, or other hunters, as I intend to post it No Hunting and No Trespassing as far as the general public is concerned. Any advice?

You would be able to grant the seller the right to hunt and camp on the land for the rest of his life.  There are a couple ways that this can be done.  One would be through an easement deed where you grant the seller the right to hunt and fish on the land for as long as he lives.  This would be an easement “in gross” to the seller, meaning the easement rights (in this case to fish and hunt) are reserved to him only, and they do not get passed on to anyone else.  You would need to be sure the easement was carefully drafted to not inadvertently give up too many rights to your newly purchased land.

Another way to do this would be to grant the seller a license to access the land for hunting and fishing.  This is similar to the easement, but with the important difference being that a license can be revoked by you, unlike an easement.  If you wanted to have certain restrictions on the access to the property, the license may provide an easier way to enforce those restrictions.  A license is more like a lift ticket at a ski resort that allows someone to be on the property for a certain purpose.  If the seller were to violate the agreement, you would be able to terminate the license, and anytime he accessed your land he would be trespassing.

You would still be able to post your land to notify others that you do not allow access to the general public.  The seller, through an easement or license, would be legally permitted to go onto the land and to hunt.  If you wanted certain restrictions, perhaps prohibiting hunting on certain days, enforcement could be challenging.  Like most property rights, a dispute would be a civil matter for the courts.  If the seller were to go beyond the scope of the rights you granted, and refused to stop exceeding their granted rights, you would need to seek an injunction from the court.   While you may have an easier time in court with a clearly revoked license, a court proceeding to restrict the seller will still take time and money.

With either the license or the easement, it will be important to make sure that the rights you are granting are clearly defined.  Most disputes over easement rights are the result of vague language that the two sides argue have different meanings.  It is best to consult a lawyer in deciding how best to accomplish the wishes of both parties, and to ensure that the agreement is legally enforceable.

For more information on property rights, visit Teel Law Office.

The foreclosure problem continues in Maine and throughout the country. Many of the large banks have more defaulted borrowers than they can really handle. And with the continued weakness in the housing market, it can be difficult for banks to sell properties that are taken by foreclosure.

If you are one of the many homeowners that are currently in default, you may find that it is difficult, if not impossible, to work with your bank to get a modification of your mortgage. Often homeowners that are in default are frequently contacted by debt collectors on behalf of the banks whose job it is to get the homeowner to cure their default, but not offer any modification. Most homeowners in default would get caught up on payments if they could, but it is simply not financially possible. Many times the bank will offer you a temporary modification, only to terminate it despite no change in your financial situation.

If you are in default or anticipate you may be soon, it can be helpful to know what to expect from your bank. While your ability to work with the bank before foreclosure will depend if your mortgage is held by a large national bank or a smaller local bank, the actual foreclosure process in Maine is controlled by the court.

Maine foreclosure laws require banks to initiate a lawsuit against the homeowner, and ultimately obtain a judgment from the court before they can take your home. Once the bank begins a foreclosure case against you, you will have the option to request a mediation. As part of the legal proceeding, banks are required to attend the mediation session and they must make a good faith effort to offer you a modification of the mortgage.

The key advantage of the court-mandated mediation session is that the banks must have a representative present (even if by phone) who can evaluate your financial information and potentially offer you one of a variety of options for modifying the mortgage. This is in stark contrast to the many hours you may spend on the phone with various bank representatives in an effort to get some sort of loan modification, typically with little if any progress. At the required mediation sessions, you can speak directly with a bank representative who must have authority to offer you a modification if you qualify. The mediation sessions are run by court-appointed mediators who can help explain the process to you if you are unable to have an attorney with you.

The federal Home Affordable Modification Program (HAMP) is a refinancing program that can be very beneficial to qualifying homeowners. As part of the Making Homes Affordable law, HAMP is designed to give homeowners who have suffered a reduction in income but want to stay in their home a chance to reduce their monthly mortgage payment. A mortgage modified under HAMP can have a very low a interest rate (the rate changes based on the market, but has been as low as 2%).

If the homeowner is not able to qualify under HAMP but their financial situations is adequate, then the bank should offer a mortgage modification that typically involves a lower rate. Often the modification will take the past due amount and add it back into the principal and possibly extend the length of the mortgage period.

It is important that you provide the bank the documents that they request before the mediation if you are requesting a modification. While this can be a considerable amount of paperwork, the banks need these documents to approve you under HAMP or their private modification program.

The process can seem daunting, and if you are facing foreclosure you likely have many other issues your are dealing with.   I offer a low-cost evaluation of your situation, and may be able assist you in your case.   Feel free to contact me if you want to set up an appointment.

The work of a retired volunteer attorney at Pine Tree Legal has led to the nationwide foreclosure halt by several mortgage companies.  In an apparent attempt to speed the foreclosure process, GMAC Mortgage had employees signing off on affidavits that said the employee had “personal knowledge” of  the information they were signing off on.  But considering the rather complex procedures banks need to follow before they can foreclose on someone’s property, and the way many of these mortgages have been sold multiple times, the employees would need to take considerable time reviewing the files and ensuring the facts stated in the affidavit are accurate.  This is important because an affidavit is a sworn statement made under oath, just like when someone is in court in front of a judge.

NYTimes.com: Her file was pulled, more or less at random, by Thomas A. Cox, a retired lawyer who volunteers at Pine Tree. He happened to know something about foreclosures because when he worked for a bank he did them all the time. Twenty years later, he had switched sides and, he says, was trying to make amends.

… All of this is largely because Mr. Cox realized almost immediately that Mrs. Bradbury’s foreclosure file did not look right. The documents from the lender, GMAC Mortgage, were approved by an employee whose title was “limited signing officer,” an indication to the lawyer that his knowledge of the case was effectively nonexistent.

… Fannie Mae and GMAC, which serviced the loan for Fannie, have now most likely spent more to dislodge Mrs. Bradbury than her house is worth. Yet for all their efforts, they are not only losing this case, but also potentially laying the groundwork for foreclosure challenges nationwide.

 

As part of Central Maine Power’s transmission line upgrades, they will need to acquire land throughout the state. They will be able to use the power of eminent domain if landowners are unwilling to sell. One willing seller was the owner of the Kennebec Heights Country Club. CMP already had a right-of-way across the land, but apparently needed more, and is willing to buy the entire property. Not surprisingly, neighbors are not happy. Kennebec Journal:

Central Maine Power Co. is close to purchasing the closed Kennebec Heights Country Club in Farmingdale, which sits along the path of its pending 350-mile transmission line upgrade, the Maine Power Reliability Project.
CMP spokesman John Carroll said the utility is negotiating a deal with the course’s owner, Michael Jennings of Winthrop. Carroll would not say how much CMP is paying for the 18-hole course.

“Any time we negotiate with landowners, we will buy the land we need, and in some cases the owner decides they would rather sell the entire parcel, which is what he wanted to do,” Carroll said. “I don’t think we’ve closed yet. It’s a parcel that we needed to acquire and we have an agreement to acquire it.”

While most people who use in Cresent Beach in Cape Elizabeth assume that it is all public land, a large part of it is still privately owned. The property, owned by the Sprauge family, was leased to the State for a token $1 amount instead of donated to the State. While the Sprauge’s have extend the lease, they apparently want to keep ownership of it in order to keep future use and development options available. The Forecaster:

Sprague Corp. President Seth Sprague said his grandfather Phineas Shaw Sprague helped establish Crescent Beach by donating and leasing land to the state in 1960. By 1966, Sprague said the state completed much of the development and Crescent Beach State Park was opened to the public.

Of the park’s 242 acres, 100 acres are owned by the Sprague family and leased to the state for $1.

… The Sprague family owns the western end of the beach, while the state owns the access road from Route 77, control station, concession stand, restrooms and bathhouse.

Sprague said land conservation remains the goal of the corporation and the family.

A new law takes effect in November 2009 that requires the installation of carbon monoxide detectors in addition to smoke detectors in certain buildings. View the specific requirements here.

The Legislature recently modernized Maine’s law that applies to smoke detectors (a law that hasn’t been updated in eleven years) and to create a new law to deal with carbon monoxide detectors. An Act to Protect Maine Residents from Home Fires and Carbon Monoxide requires all newly-constructed single family and multi-apartment dwellings constructed or sold in the state to have both smoke detectors and carbon monoxide detectors that meet certain specifications and are installed in certain locations within those residential units.

via Public Safety.