MSK is pleased to offer Land Use Letters, a blog for readers with questions about Vermont real estate and land use law. MSK encourages readers to submit questions to email@example.com, and every month we will reply to a handful of letters through the blog. We will not respond to individual requests for advice; we do not create an attorney-client relationship by accepting questions, and we do not create an attorney-client relationship by replying to questions within Land Use Letters. If a reader desires to engage MSK as counsel, then please contact our office by telephone at (802) 861-7000 to schedule an appointment with an attorney. When we post a letter in Land Use Letters, we will not attribute the question, and we reserve complete discretion to edit questions that have been submitted, to combine questions, to rephrase questions or to create questions. Given the amount of specialized knowledge and jargon used in the practice of real estate and land use law, it is often difficult for those who are unfamiliar with the terms used and the laws and regulations involved to ask a question to which the legal system can respond effectively. Our goal with Land Use Letters is to ask questions and provide answers in plain English so that our readers may more effectively undertake further research on their own and also appreciate when it is appropriate to retain an attorney or other qualified professional.
Q: I own an apartment building in Burlington that has appreciated considerably in the last four years. The taxes and upkeep are too much for me now, and I’d like to sell it. Is there any way to reduce or defer paying capital gains taxes owing on the transaction?
A: Congratulations on a smart investment. There are two primary ways for you to defer capital gains tax in this situation. The first is to sell the property and offer seller financing, which spreads out your payment of capital gains tax over time as you receive principal payments from the buyer of your property. This is a method often used by someone wishing to retire and establish a steady income stream.
Q: I own a seasonal camp on Lake Champlain that I would like to convert to year-round use. It will need a new septic system, but I've been told there is not enough space to build a new system and still meet "isolation distances" between the septic system and my water line. Is there anything I can do? The new septic system would be much better for the environment than what currently exists, and would be placed further away from Lake Champlain.
A: The reason for the isolation distance rule is to protect your water supply from being contaminated by the effluent from your septic system. Unfortunately, you may be subject to a number of different state and municipal regulatory schemes, each with different requirements depending on whether it is an individual well, a community water supply, or a municipal system. You will need to work with a civil engineer who has experience with the waste water rules to determine what regulations apply and whether there are ways to reduce the setback requirement under the applicable regulations. There are certain techniques, such as putting a "sleeve" over your water line, that may allow you to get a waiver from these rules. Each situation is different so it is important to speak to a qualified professional to determine the best solution for your circumstances.
Q: I recently purchased a 30-acre parcel with an old road running through it. The road ends at my property and there is only one other landowner that abuts the old road. Her property also abuts a public road. Teenagers use the road for parties and I would like to close the road. Is there anything I can do?
A: The debate over ancient roads is a hot topic in Vermont real estate right now as property owners wishing to close old roads may conflict with recreational users seeking to keep them open for hunting, mountain biking and the like. The Vermont statutes specify a procedure that allows the Select Board in your town to "discontinue" a road. The procedure requires notice to interested property owners, a site visit and a hearing. In order to proceed with discontinuing a road, you may need to engage a surveyor or other professional to find out where the road was originally laid out. It may help to have an informal conversation with your Town Select Board to determine whether any politics may come into play. In addition, merely closing the road to public use may not resolve the matter, as neighbors may have a private right of access to cross the road to access their property.
Q: I own 3.5 acres and the northern portion of my property has an easement across it for use by my four neighbors. I do not use the road. In the recent storm, a huge branch from my property came down and is hanging over the road. Whose responsibility is it to take care of the branch?
A: An easement is a property right that allows someone to cross land which you continue to own. It is sometimes called a right-of-way. As a landowner, you have the right to use your land in any way you wish so long as you do not interfere with your neighbor's right to cross it. As a general matter, because you are the owner of the land, the trees are yours and if they are damaged, it is your responsibility to make sure that they are not unsafe. However, you should look at your deed because it may shift the responsibility for maintenance onto the users of the easement. Whether removing a branch on your property constitutes "maintenance" of the right-of-way is a debatable issue, and some may argue that the deed meant to cover only grading, snow plowing and the like.
This blog is not intended to provide legal advice, but only an overview of certain legal principles. The answer to any particular question may vary depending on the facts. Consult an attorney for further analysis.