The Best of the Legal Hotline: Water Issues


 Tracy Rucka  |    August 02, 2010
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Piers as fixtures 

When the listing contract was signed, it stated that a pier was included. When the offer was drafted, the pier was not mentioned as an inclusion. Is it included with the property?  

The newly revised WB-11 Residential Offer to Purchase informs buyers and sellers that the offer, not the listing or marketing materials, determines what is or is not included in the sale. The WB-11 definition of "fixtures" includes docks and piers on permanent foundations and so they are automatically included in the sale unless explicitly excluded. Therefore, if the pier is on a permanent foundation it is included. If, on the other hand, it is removable or portable, then it would need to be specifically listed as an inclusion to be part of the sale.

Pier registration 

The buyer is looking at a waterfront property that has a huge pier. Does the pier need to have a permit?  

The Pier Protection Act signed into law in 2007 made changes to Chapter 30 of the Wisconsin Statutes regulating piers. Most piers don’t need a permit. Some piers that exceed stated size limits can be grandfathered if registered no later than April 1, 2011. The need for registration is determined, in part, by length, width, platform size, number of boat slips, location and date of first placement.

A pier eligible for registration (1) must have been placed before February 6, 2004; (2) have a main stem that is no more than eight feet wide; (3) have a loading platform at the end of the pier that is no more than 200 square feet, or no more than 300 square feet if it’s no more than 10 feet wide; and (4) does not interfere with the rights of other riparian owners. If the existing pier meets these criteria it can be registered with the Department of Natural Resources (DNR) by the April 2011 deadline. Another alternative is for the buyer to bring the pier into compliance with Chapter 30 parameters for exempt piers. If the pier does not meet the standards for an exempt pier and is not registered by April 2011, then the owner may need to apply to the DNR for a pier permit.

A complete list of these standards is contained in the pier grandfathering article in the May 2010 Wisconsin Real Estate Magazine at  www.wra.org/WREM/May10/PierGrandfathering. In addition, the DNR publications "Wisconsin’s Pier Regulations: Everything you need to know for 2010" and the "Pier Planner" at dnr.wi.gov/waterways/factsheets/pierplanner2009.pdf include permit and exemption information. 

Buying waterfront property 

The buyer is considering a waterfront parcel of land. What should the buyer consider before purchasing if they want to improve the home, do landscaping and make other changes?  

There are both benefits and limitations to consider when purchasing riparian or waterfront property. Projects will be subject to county and local shoreland zoning ordinances. Ordinances may require the buyer to obtain permits, limit uses or prohibit some types of development within the shoreland zoning area. Shoreland zoning ordinances are designed to balance the property owner’s interest in development with the need to protect lakes, streams, water quality and wildlife habitat, and the rights of the public to use public waterways. Although riparian rights include the use of the shoreline, access to the water and reasonable use of the water, any private use must coexist with the Wisconsin Public Trust Doctrine that requires the state to protect the public right to Wisconsin’s waterways.

Before beginning any project, the buyer may consult with the DNR "Activity Atlas" which allows riparian owners to learn what may be done and what permits or limitations there may be by project type. The Activity Atlas may be found at dnr.wi.gov/waterways/help/activity_index_text.html. In addition, the buyer must comply with county and municipal zoning ordinances. 

Eurasian milfoil 

The broker has heard that there is Eurasian milfoil in a lake in the area. Is this something that must be disclosed to a buyer?  

Real estate licensees must disclose material adverse facts and information suggesting material adverse facts promptly and in writing. Whether the existence of Eurasian milfoil (see dnr.wi.gov/invasives/fact/milfoil.htm) or any other aquatic invasive species is a material adverse fact is a judgment the licensee makes after considering all of the facts and circumstances in the situation. 

If the agent, as a competent licensee, knows that the presence of Eurasian milfoil in the lake: (1) has a significant adverse affect on the value of the property, (2) significantly reduces the structural integrity of the property, (3) presents a significant health risk to the occupants of the property, or (4) is information that indicates that a party to the transaction is not able to or does not intend to meet their obligations under the contract, then it is an adverse fact. If a party to the transaction indicates, or if a competent licensee would generally recognize, that the presence of Eurasian milfoil is of such importance that it would affect a reasonable party’s decision to enter into a contract, or would affect the party’s decision about the terms of the contract, this fact is both adverse and material. If that is the case, then Wis. Admin. Code § RL 24.07(2) requires the licensee to disclose the fact in writing to all parties to the transaction in a timely way, even if the client would direct the licensee not to disclose.

If the licensee knows or is aware of information suggesting the possibility of a material adverse fact, Wis. Admin. Code § RL 24.07(3) states that the licensee will be practicing competently if the licensee makes timely written disclosure of the information suggesting the material adverse fact to all parties to the transaction, recommends the parties obtain expert assistance to inspect or investigate for the possible material adverse fact, and, if directed by the parties, drafts appropriate inspection or investigation contingencies.

Information about invasive species is available from the DNR at dnr.wi.gov/topic/invasives. 

 Private septic systems and wells 

A buyer is considering purchasing a lakefront cabin and wonders what additional inspections or tests should be done given that the property is not on city sewer and water?  

The WRA Addendum B has been designed to address many well and septic requirements for a rural property sale.

Septics/POWTS 

Brokers working with buyers on rural property must be aware of any local requirements for POWTS (private onsite wastewater treatment systems). Many municipalities are beginning to enact their own rules and ordinances regulating POWTS and other property features, so it is best that the parties check with county and municipal zoning authorities to see if there might be additional septic and well requirements that may apply to the property. For instance, in a few counties, POWTS inspections are required when a property is sold and the inspector is required to submit a copy of his or her report to the municipality. This is being done in an effort to build an inventory of POWTS records.

Well water and wells 

The Addendum B provides for safe water testing. The key is for the real estate licensee to know what tests may be appropriate given the presence of contaminants in the local area. For example, higher levels of radium have been found in wells in the sandstone aquifers that run from the Green Bay, Wisconsin area to the Illinois state line.

Buyers with questions may be directed to the DNR website at dnr.wi.gov/org/water/dwg/priweltp.htm for information regarding other substances for which they may wish to test. Additional resources discussing contaminants in well water include pages 4-10 of Legal Update, February 2010, "Drinking Water and Wells," online at www.wra.org/LU0210. The DNR brochure, "Tests for Drinking Water from Private Wells," online at¬†dnr.wi.gov/regulations/labcert/documents/testsforwell.pdf¬†¬†is also loaded with useful information for consumers and REALTORS¬ģ.¬†

Shared well agreements 

When the seller has a property with a shared well agreement, is it transferrable to the next buyer? Do the parties have to re-write the agreement between the new owner and the old neighbor?  

Shared well agreements may be as informal as a verbal agreement between neighbors or may be drafted by attorneys and recorded. In transactions with shared wells, it is in the parties’ best interest to have a written agreement and know the terms of the agreement and whether it is assignable. In many cases when the buyer is seeking financing, a recorded shared well agreement may be a condition of obtaining the loan.

Taking this into consideration, the WRA Addendum B includes a shared well provision that requires the seller, at the seller’s expense, to provide the buyer with a shared well agreement that provides standards for the operation, maintenance, water testing, repair and use of the well for residential purposes, and the prorata sharing of costs and responsibilities among all parcels served by the well. Other issues that might be addressed include major improvements and the eventuality of well closure if the parties want to include such terms and conditions as a condition of the sale.

More information about wells, shared wells, POWTS and the WRA Addendum B is available in the April/May 2008 Legal Update "Addendum B Revisions: Wells and POWTS" at www.wra.org/LU0804.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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