seller wants fishing rights for life

[Evie]

We are in the process of buying a house with 10 acres that has access to our pond. In fact we are buying the property to keep control of the access to the water, we already own the other 90 acres that surround the pond. We won't live there, we will have to rent it out to make the mortgage payments and eventually, sell or lease it to my parents or my in-laws. The seller wants fishing rights for life, and wants it to appear on the deed. The escrow agent had written up a fishing license that would be recorded with the deed, but the seller wants it on the deed and won't sign the deed otherwise. Won't including the fishing rights on the deed cloud the title? A realtor told us that such a privilege, if stated on the deed is worth money since we are paying him his full asking price. The money is not the issue, I just don't feel that the deed should not include such a restriction, and the privilege should run with the owner not with the land. Any suggestions out there?
Thanks in advance for any input you may have.
Evie
PS: this is in Kansas and we are scheduled to close on 6/30

[Tracey]

The problem with O reserving a life-long fishing right is that he could transfer that right to anyone he wants. The problem with you merely giving him permission to fish in the pond is that the permission would lapse if you sold/leased the property or if you two died before O did. Obviously you all want the deal to go through; you just can't agree how to accomplish it. These problems & concerns can be worked out with a little creative drafting.

I suggest 2 deeds: one conveying the land to you in fee simple absolute, & one granting the current owner a *non-transferable, non-exclusive* easement for his natural life to fish in the pond & to cross the property (along a specific path) to access the pond. You could add any terms you both thought appropriate, including: whether he may bring guests, whether he must accompany guests, whether he must install & maintain a chemical toilet near the pond, whether he may construct a shed, pier, boat launch, awning for shade, how often he can fish, how much noise he can make, what hours he can fish, if he can stay by the pond overnight, etc. You should also address who has the responsibility to maintain the pond & fish stocks. Since the easement is non-exclusive, you can fish or allow anyone else to fish if you like.

Once he records the easement, you can't take it away or withhold permission to fish. He can't abuse the easement or create a nuisance by exercising his fishing rights. You should also specify how the easement extinguishes: perhaps by you recording a copy of his death certificate? This is so that the next title search does not tag the easement as a cloud on the title.

Make sure that you put notice of the easement in any lease you sign with renters so they are forewarned that a stranger may be on their land often. Also, keep in mind that there's no guarantee he'll still be using the easement in 5 years. He may be transferred or decide he likes his new fishing hole better.

Since he wants the easement, you're paying full asking price, and he didn't specify that the house was offered with a fishing right retention, you could probably force the sale without letting him keep the rights. However, forcing the sale will cost you a couple thousand in legal fees & a year or two in court. Why not have him pay your lawyer's fees for drafting the easement deed? It doesn't cost you any money & makes the deal go through smoothly.


Was this any help?


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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited June 23, 2000).]

[Evie]

Dear Tracey,
Tahnk you for taking the time to reply to my post, and for the good advice. We will sit down with the sellers and using the above arguments I am hopeful we can come to an agreement.
Thanks again,
Evie