ALL IN THE FAMILY: When Family Members Disagree Over Land Use

 

Conflict in family relationships is inevitable.

It happens in strong families and broken ones. It happens over something as simple as where to vacation, or circumstances as complicated as deciding upon the best use of real property. As speculation grows over the future of hydrofracking in New York State, we’re seeing more and more situations where joint landowners are at odds over property matters. Here’s some guidance on how to keep the peace, even when you disagree. Continue reading

The Maple Tap Act: an opportunity too sweet to pass up in upstate New York

 

By Matthew K. Pelkey

The Acer Access and Development Program, otherwise known as the Maple TAP Act, is a part of the federal 2014 Farm Bill enacted earlier this year which will provide USDA grants of up to $20 million per year over five years to maple producing states to encourage production and development of the maple industry. This is a competitive grant process between maple producing states.

The public policy justification behind this funding is that the United States is missing out on a large opportunity given the number of maple trees we have and the relatively low number of trees we are tapping. Canada, and more specifically Quebec, is capitalizing on 75% of worldwide production. The U.S. does not even break 20% of worldwide production.

The problem, and corresponding opportunity, is that Quebec utilizes 35% of available maple trees whereas the U.S., with 2 billion potential taps, only has a utilization rate of .38%. Given that we are currently importing 4 times as much maple syrup as we produce—there is a tremendous market opportunity presenting itself. Continue reading

A Failed Attempt to Block a Right-Of-Way

 

By David J. Colligan

My firm’s practice includes the representation of timberland owners. In 2005 I received an attorney referral of a timberland owner; the referring attorney did not feel he could provide the services that a litigated matter required. I met with the client and learned that he originally owned a 43-acre parcel of land with a house and garage near the road. Since he had no use for a second home (he had already moved out), he split the parcel into a 5-acre front piece containing the home and garage and a rear 38 acre- piece. The latter was accessible only by a retained right-of-way over the existing driveway, which ran between the house and garage. Due to a typographical error in the legal description for the right-of-way (“southwest” versus “northwest”), problems arose after my client sold the frontage and retained the rear parcel. Continue reading

Oil & Gas Opportunities for Tree Farmers

 

By David J. Colligan

As a practicing lawyer, I have been getting calls from tree farmers who have advised that a person knocked on their door and offered to lease their acreage for oil and gas production. Usually, the landowners are presented with a pre-printed form with a few blanks filled in and asked to sign the form. Fortunately, my clients asked me before they signed the lease!

The leasing of timber property for oil and gas production can be a lucrative and worthwhile use of the property which is not directly inconsistent with timber management and other woodland activities. However, there are some basic rules that must be kept in mind from the very first contact with the representative of the oil and gas company. Continue reading

Boundary Law

 

THE NY FOREST OWNER 31:5; 13; Sept/Oct 1993

BOUNDARY LAW – PART I

By David J. Colligan

We as forest owners are often confronted with a basic inquiry: where exactly is my boundary? Usually the reason for the inquiry is the occurrence or possible occurrence of some event which will change the status quo, such as a sale of the property, timber harvest, installation of a pond or erection of a building at or near the property line. Unfortunately for many of us, the expense of a survey provided by the seller as in urban property purchases was a “deal killer” which we were willing to forego if it meant paying for it ourselves. Now, long after the transaction closed, a boundary must be located. Where does one begin? Continue reading

Timber Contracts

 

THE NY FOREST OWNER 33:5: 14: Sept/Oct 1995

TIMBER CONTRACTS

By David J. Colligan

As a practicing attorney and a member of the New York Forest Owners Association, I have had many occasions to review timber contracts. My advice to everyone is to put all essential agreements between yourself and the timber buyer in writing. This article will discuss some of the essential elements of a timber contract and some of the considerations when preparing or entering into a timber contract.

Everyone selling timber should have a timber contract, even if the sale involves a small volume of sawlogs or a relatively small amount of firewood cordage. Prior to preparing the contract, the timber seller should know the following information: Continue reading

Why New York’s RPTL §480a Does Not Encourage Forest Stewardship

 

By David J. Colligan

“Don’t tax you, don’t tax me. Tax that fellow behind the tree,” Newsweek columnist George Will quipped. Chances are that fellow behind the tree is a private forest owner.

Woodland owners are increasingly feeling pressure due to property taxation and urban sprawl. Over the last century, large industrial forest tracts have been broken up and marginal farms have been abandoned. These lands have been sold for amenity values, recreational use and, in some cases, timber production. At the same time, the perception of modern forest owners has evolved toward stewardship of the land with responsibility to enhance future enjoyment and use of the forests.

Quietly, but steadily, this forest stewardship evolution has caused or coincided with a revolution in the state taxation of forests. A vast majority of the states have changed their ad valorem (by the value) tax rules in hopes of encouraging the forest owner to perpetuate forestland and develop forest management plans utilizing sound silvacultural practices. Continue reading

Trespass

 

By David J. Colligan

Trespass is the act of entering upon another person’s property against that person’s express directive. In New York State it is a crime to trespass under the following circumstances:

1. Remaining on or returning to a property after being asked to leave and not return.

2. Entering upon property properly posted without permission. Proper posting requires 11″ square signs not more than 660′ apart located close to or along boundaries. There must be one sign per side and one sign per corner. The signs must bear the name and address of the person posting and must state “Posted” or describe the prohibited activity in a conspicuous statement. It is not recommended to brandish a firearm when requesting someone to leave.

3. Entering upon premises fenced otherwise enclosed to exclude intruders.

This does not mean fenced to enclose farm animals such as one or more strands of barbed wire. Criminal trespass can be enforced by calling for the police or Sheriff.

If you suspect the trespasser is violating conservation law you can call the DEC, however, response time is not very fast given the limited number of enforcement officers in any given region.

Trespassers can be held liable for civil damages even if no criminal action has been taken. “Nominal” damages are available if no property damage has been done. Actual damages are recoverable if the trespasser has damaged your property. Any damage to timber or trees is recoverable at three times (treble) the value of the trees cut (RPAPL §861).

Dave Colligan, a member of NYFOA’s Niagara Frontier Chapter, is a practicing attorney with a Buffalo law firm (Colligan Law LLP; 600 Bank of America Building, 12 Fountain Plaza Suite 600 Buffalo, NY 14202and regularly provides articles on legal matters of interest to forest owners.

Landowner Legal Rights: Liability and Duty Owed Persons Using Your Property

 

THE NY FOREST OWNER 29:4: 7: July/Aug 1991

Landowner Legal Rights: Liability and Duty Owed Persons Using Your Property

By David J. Colligan

Perhaps the question asked most often by landowners upon learning that I am an attorney is what happens to them if someone is hurt upon their premises. An owner, lessee, or occupant of premises whether or not posted, owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning (whatever that is), canoeing, boating, trapping, hiking, crosscountry skiing, tobogganing, sledding, speleological (cave exploration) activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for noncommercial purposes, or training of dogs.

The law goes on to say there is no duty to give warning of any “hazardous condition or use of or structure or activity on such premises” to persons entering for the above-mentioned reasons. My advice is to warn if there is a known danger which is under the owner’s control, such as a structurally defective barn, a target shooting area, an old well or foundation, if for no other reason than to avoid an unnecessary injury to someone. Also, the law does hold farmers liable for gross negligence or reckless behavior, and failure to warn of very dangerous situations may constitute gross negligence. Under no circumstances is malicious or willful failure to guard or warn against a condition, use, structure, or activity protected from liability. Just in case you’re wondering (most do), spring guns, booby traps, unleashed wolves, starved and released Bengali Tigers, 30 foot Anacondas and other deliberate but passive “protective” devices also create liability.

A very common misconception is that by giving permission to someone to use your property you create liability where there was none. This is simply not the case. However, if a fee is received for the use of the property, then you do owe that person a duty to keep the premises safe. This is important to remember as hunting leases become more common.

Ref: N.Y. General Obligations Law
Section 9-103

Dave Colligan, a member of NYFOA’s Niagara Frontier Chapter, is a practicing attorney with a Buffalo law firm (Colligan Law LLP; 600 Bank of America Building, 12 Fountain Plaza Suite 600 Buffalo, NY 14202) and regularly provides articles on legal matters of interest to forest owners.

What’ll You Do With The Farm When You’re Gone?

 

The NY Forest Owner 33:1:6; Jan/Feb 1995

What’ll You Do With The Farm When You’re Gone?

By David J. Colligan

As a practicing attorney, I am constantly asked whether the living trusts that are being propounded and sold by attorneys around the state will achieve the objectives of avoiding probate, limiting income taxes, reducing or eliminating estate taxes, as well as fulfilling the planning objectives of the grantor. While living trusts may be appropriate for some, I believe living trusts are oversold and are not appropriate for many of the individuals and family situations for which they are being created. My principal objection to living trusts is that the estate, income, and gift tax benefits (if any) of living trusts are not sufficient to justify the monumental effort in creating and maintaining the trust. Continue reading