Article on Hunting Rights

[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.

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Maine Foreclosure Mediations

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.