DAVID K. PORTER
LAWYER
5208 Bloomington Avenue
Minneapolis, Minnesota 55417-1820
email: Probater@Earthlink.net
(612)722-1001
MSB A Board Certified Real Property Law Specialist
Lake Cabins in Winter
The purchase, ownership, and use of lake cabins requires special familiarity with legal title, zoning, setback, property line, building code, shoreline, easement, access, and most especially septic system requirements. Each and all of these issues have characteristics that are different from the expectations involved in the purchase and use of residential urban property. It is also important to know there is usually an opera - or perhaps a merry-go-round - in the background, revolving around the expectations of families, friends, and neighbors whenever a lake cabin is involved.
- Septic Systems
In the city, anything going down the drain is expected to disappear into a public sewer system, and this system is expected to work without any concern. This is not the case here. A "septic system" is entirely different. Everything going down the drain or toilet needs to be dealt with so it stays on the property in a safe and sustainable manner. Unless the Individual Sewage Treatment System ("ISTS") has been certified by an inspector with a license acceptable to the county in which the property is located, and within the past three years, or installed within the past five years, a fresh certification is required.
The traditional outhouse is no longer acceptable. This change in attitudes, laws, and regulations will come home to roost whenever title is transferred or a building permit for new construction or improvements is required. It is extremely important to realize that the governing laws and regulations vary and are determined by the local units of government where the ISTS is located. Check and re-check with the local authorities before assuming anything, whether you are working on the purchase agreement, anticipating a closing of a sale or other transfer, or hoping to get your transfer documents filed. There is no universally accepted form or set of rules. Some counties have their own self-generated form. Regardless, the individual county's - and sometimes locality's - requirements have to be met before the transfer documents can be filed or permit(s) issued.
The problem that comes up in winter is that the "percolation test," required for certification, is impossible when the ground is frozen. There also has to be a determination that there is at least three feet of separation between the bottom of the drain field and any soil capable of retaining water (such as a layer of clay or solid rock).
An alternative that will allow recording of the deed is to establish (and convince the County Recorder of the viability of) an escrow holding back 150% to 200% of the estimated cost of a conforming system, pending inspection. Most counties require the use of a third party to hold the
escrow. At least one county has required the escrow to be deposited with the county itself. Note also that the estimate will have to be in the form of a bid from a properly and locally licensed designer and installer. Holding tanks are another option, though not usually acceptable to buyers. The county will require proof of a contract with a licensed septic pumper. $150 to $250 is a common charge for pumping out a 1,000 gallon holding tank whenever it gets full.
Septic systems can freeze during the winter. There are "septic cover blankets" that can be purchased. Bales of straw are also commonly used. If this is not done, the tanks can crack, requiring full replacement.
Anyone involved in a purchase agreement for property that is not connected to a city sewer system needs to address the issue of an ISTS. County Recorders insist on resolution of this issue before accepting a deed for recording, so you'd better get this straightened out from the beginning. Note the setback requirements for the lot boundaries and for any well. A variance may possibly be obtained for the lot boundary, but never for a well. Note also that any new platting will require at least two possible locations for an ISTS on each lot.
Owners and users of the property should also understand the limitations of any individual septic treatment system. They have limitations that can become quite evident when overused. Noxious pools full of dangerous bacteria can form on or too near the surface. Big parties, washing machines, garbage disposals in the sink, hygienic products, and just plain overuse can easily overwhelm the system. Children, dogs, and others can dig things up that shouldn't be around people.
Familiarity with Minn. Stat. 115.15 and Minnesota Rules, Chapter 7080 are especially important for any attorney involved in a transaction involving an ISTS. Failure to disclose the existence of a sewage treatment system on or serving the property - whether In use or not - may subject the seller to liability for costs incurred in bringing the system into compliance, together with reasonable attorney fees. This issue is so important that it must be a part of any purchase agreement. Note also that a map showing any system - whether not it is in use- must be on file when filing any deed or obtaining any building permit.
- Construction and Zoning Limitations
The buyer should understand the additional setback requirements for lakeshore property, including restrictions on any changes. The Minnesota Department of Natural Resources guidelines are enforced more and more, including a 75' setback from their definition of the shoreline and additional requirements concerning landscaping and use of lakeshore. Shoreline regulation jurisdiction commonly extend 1,000 feet from lakes and 300 feet from rivers. These issues are not going to be nearly so evident during a wintertime inspection.
The expectation that "the lake cabin is a place free of regulation and worries about mundane things" leads to the common expectation that "It's easier to ask forgiveness later than permission before." Any number of people have discovered that this does not work with lakeshore property. Contractors need to be familiar with the local ordinances. (One test is whether the contractor knows the maximum allowed width of a riparian staircase.) Note also the continuing temptation to throw up a pre-fab accessory structure, such as a boat house or storage shed, within the setback area.
Zoning laws and regulations vary by rule, application, and geography. Always be sure to check state law, county zoning, and local city or municipal - including township - rules before proceeding. The County Zoning Office is usually the best place to start finding out how many, and which, agencies with which you will need to deal.
Surveys and Easements
The most expensive land in the world is the eighteen inches either side of the property line. The corners can be found by a surveyor even in the winter. It is going to be a lot harder to see what the property lines look like under several feet of leaves and snow. Evidence of use, possession, and even barrels of hazardous materials are going to be obscured. Note also that this limitation also applies to being able to see what is going on with neighboring properties. My own favorite along this line was my mother's discovery that the cabin she was going to buy turned out to be at the bottom edge of the seller's new septic drain field - on a sandy slope.
Private roads are common in lakeshore areas. Who owns them, how wide are they, who maintains them, and who gets to use them? Your property won't be worth much if you, your family, your service providers, and your guests can't get to it. Beware of stories like, 'This was a sled dog trail in the old days and it has always been there." Your survey should include road access and easements, not just the lot itself. If the property purchased does not at least touch a public right-of-way, a connecting easement - of record - must be established.
County Recorders - and especially Torrens Examiners - are requiring greater specificity, and sometimes a survey, before allowing the recording of easements. Sloppy work in this area can lead to many thousands of dollars in costs for legal work and road re-construction, just to uphold basic legal rights. Mortgage lenders have also caught on to this issue.
Read and understand the exceptions to a Title Insurance policy. And remember that Title Insurance is not the same as a thorough review by an attentive lawyer working for a personal client. Issues relating to condition of the property, encroachments, and surveys are not likely to be covered.
It is important to remember that a lot of lake cabins started out as a hobby for one or more guys just looking to build a shack where they could fish and drink beer. If it was over or astride a lot line, they didn't really care - the place wasn't that valuable anyway. Surveyors often lacked proper equipment and training. It was only twenty or thirty years later that the property became more valuable than their own homes in town - and the neighbor changed from someone your grandpa was in the army with to a gimlet-eyed stranger.
Landowners will often assume the boundaries of their lake lots run perpendicular to the shoreline. It is not uncommon for whole plats having to be redone to correct this erroneous assumption. Note also that a "meander line" is created in order to exclude a body of water when determining the boundaries of a quarter/quarter section. The general rule is that boundaries will deflect from meandered lines towards the center of the lake, up to the shoreline.
- Security and Safety
Hanging an unflagged cable across your driveway is a great way to decapitate anyone using a snowmobile. Just because you aren't there doesn't mean others might not be passing through. With or without your permission, they have a right to safe passage.
There is often a lot of poverty in areas near lake cabins. Methamphetamine and other drug use and abuse can also be prevalent. Your cabin can look like the cherry on an ice cream sundae, full of easily saleable stuff. Take your guns, fishing gear, and electronics home.
Security cameras have gotten sophisticated and cheap. Internet access is widely available, allowing one to have real-time video access 24/7. Simply mounting such cameras (up high and out of reach, but obvious) can be enough to persuade the casual thief to go elsewhere.
Evidence of regular visits is also a deterrent. Making arrangements with a neighbor or security service is cheaper than your deductible. Note also that property insurance companies hate vacant houses and charge much higher premiums - or deny coverage.
Winterizing a cabin for closure is an art form. Keeping it heated is expensive, and the constant availability of fuel can be problematic. Running out of propane can lead to catastrophic plumbing failures. Underground power lines can snap during a deep freeze. If it is going to be kept heated, there should be a monitored alarm system with a freeze warning. Keeping the road and driveway plowed so someone can get in to deal with any emergency may also be considered.
Completely drain all pipes and drain traps, shut off the pilot lights, secure the chimney caps, pour R/V type antifreeze in the toilets and drain traps, leave a key and contact information for a year-round neighbor who can be reached in an emergency, stash some surplus MRE's in a mouse-proof container just in case, and hide a gallon of gas and a chainsaw.
Well heads and other outside pipes should be well marked. Snowmobiles and other "snow machines" are increasingly popular. They go fast, often with drivers having both vision and judgment impaired. Docks and other equipment taken onshore for the winter can also turn into a liability issue.
- Lake Levels, Condition, and Meandering Shorelines
If the stated legal description for the property includes reliance on a described shoreline, look out. Lake and river levels vary with the season, weather, and climate. The actual condition of the lake itself is a critical part of this transaction and use. A line described as "perpendicular to" a shoreline is my personal favorite. Note also that title should go to the water's edge, otherwise whoever did the plat could still own a strip along the shore. (Look at the plat to verify intent to convey riparian rights.)
The real experts in this area are those who have helped me so much in writing this article with their generous suggestions and time: Malcolm Davy, John Gassert, David Meyers, Thomas Sellnow, Mark Signorelli. They have each provided so much help that my failure to acknowledge them would amount to outright plagiarism.
Further information is available in the excellent April 2016 Bench & Bar article by David Meyers, "Lake Law 101 or So You Want to Own a Cabin" and two extraordinarily good CLEs: June 2001, "Buying and Selling Lakeshore Property" (Paul Kilgore); and the September 2006, "We're Going Up to the Cabin" (Charles Andersen, Brant Beeson, Terry Karkela, Robert Bigwood, Stanford Hill, and John Olmon).
David K. Porter
Caveat: This article is is intended as an educational aid for licensed attorneys, along the lines of "Tips & Traps for a New Lawyer," and neither given nor intended as legal advice to anyone for any specific situation. Note also that requirements vary significantly from one county to another, and that state and federal regulations also apply.