Well and septic 

A listing is on a rural property with a private well and septic. The buyers are from the city and do not have any experience with rural properties. Should the broker advise the buyers to have the well and septic tested?

Yes. The broker should suggest tests and inspections regarding the well and septic. License law dictates that licensees be knowledgeable regarding laws, public policies and current market conditions on real estate matters and assist, guide and advise the buying or selling public based upon these factors. Failing to do so may be deemed incompetent practice by the Department of Regulation and Licensing. Once the buyers are informed about well and septic matters, if they decline to have well testing and or septic inspections it is best practice for the broker to get the customer’s declination in writing for the agent’s file.
Education resources are available at:

Wisconsin Department of Natural Resources publications:

You and Your Well: www.dnr.state.wi.us/org/water/dwg/pubs/YouAndYourWell.pdf

Groundwater: www.wnrmag.com/supps/1999/aug99/drink.htm/care

UW Extension publication: Care and Maintenance of Residential Septic Systems: learningstore.uwex.edu/pdf/B3583.pdf

Perk tests 

An offer has been drafted on a vacant parcel and the agent who drafted the offer did not exclude any type of acceptable septic systems in the proposed use contingency. The property did not perk for a conventional system. Rather, the soil is suitable only for a holding tank or mound system. Is the buyer still obligated to purchase the property?

Yes, pursuant to the terms of the WB-13 Vacant Land Offer To Purchase, any system is considered acceptable unless specifically excluded. See lines 275-280. Therefore, if a buyer does not want a certain type of system, i.e., a mound system, holding tank, etc., the buyer needs to exclude that type of system at lines 179-188 or elsewhere in the offer to purchase. The buyer may need to consult with a private onsite water treatment system (POWTS) specialist to learn what type of systems are and are not acceptable for his intended use of the property. The broker may review Legal Update 01.08, online at www.wra.org/LU0108 for more information about private sanitary systems.

Pesticides, lead and arsenic 

What should a buyer consider when buying property that was formerly used as an orchard?

In the past, certain pesticides used in fruit orchards contained lead and arsenic. Although soils naturally contain traces of these compounds, the application of pesticides for agricultural purposes has resulted in some soils containing contamination that could result in health risks. Soil sampling results will fall into one of three categories. These categories — background, pesticide-use, and priority — are described in the Department of Agriculture, Trade and Consumer Protection’s (DATCP) guidance document titled “Identifying and Cleaning up Sites Contaminated with Lead and Arsenic from Historic Pesticide Use.” This document, along with a question and answer sheet that discusses some basic information for homeowners and home buyers, can be found on the DATCP lead arsenate Web page at www.datcp.state.wi.us/arm/agriculture/pest-fert/pesticides/accp/pdf/pbasq&a.pdf. More information about orchards and contamination issues is available at www.wra.org/orchards and www.datcp.state.wi.us/arm/agriculture/pest-fert/pesticides/accp/lead_arsenate/pdf/LeadArsenicFactSheet.pdf.

Crop leases 

A broker is going to list a 40-acre parcel. It has been under a verbal year-to-year lease between the owner and a farmer. The farmer believes he has rights to plant crops again. Please advise.

Many farm or crop leases are not written but rather are verbal “handshake” agreements. Because nothing is in writing, the parties may have different recollections of their agreement, making disputes more difficult to resolve. These verbal leases will typically be year-to-year periodic tenancies that renew automatically on an annual basis and that require 90 days’ written notice by either party for termination per Wis. Stat. § 704.19(3). The 90 days’ notice is designed to give the tenant an opportunity to locate a new farm and/or the landlord time to find a new tenant. Prior to drafting an offer, the broker and the seller may work to ascertain the farmer’s rights prior to negotiating the offer to purchase because the buyer will take the property subject to the farmer’s rights unless the farmer and owner negotiate otherwise. See page 7 of Legal Update 99.07, online at www.wra.org/LU9907, for further discussion of farm and crop leases.

Shared well agreements 

A broker has a rural property listed that is on a shared well. The seller has the electrical components and the expansion tank on his property and the neighbor has the well. The seller has always paid the electric bill for the whole system and recently upgraded the electrical and put in a new tank at his own expense. Recently, there was a problem with the well and the pump required replacement. The neighbor made the repairs and the seller offered to help with the cost. The neighbor refused the offer and told the seller he wanted him off the well. Can he legally do this? The well has been shared by the same properties for approximately 35 years. The agreement is current and always has been verbal.

Unless the parties have a written shared well agreement that represents the agreement between them, the neighbors will need to rely on the verbal agreement. If they do not agree on the terms of the agreement, they will need to negotiate, or if that’s not possible, litigate to reach a solution regarding the shared well. The broker must refer the seller to legal counsel to negotiate, or litigate if necessary, to find a resolution to the issue. Legal counsel may also draft documents to represent the agreement between the neighbors. The seller will need to disclose the shared well and arguably the dispute with the neighbor as well. For the protection of the buyer and seller, any offer to purchase that is drafted should address the shared well issues.

Fences, repairs and viewers 

If a fence between farmers needs repairs don’t both parties have to pay for half?

Wis. Stat. Chap. 90 (www.legis.state.wi.us/statutes/Stat0090.pdf) requires the owners of adjoining land used for farming or grazing to jointly construct and maintain fences between their lands. If one owner fails to build or maintain his or her share of the fence, the neighboring landowner may complain to the fence viewers, who are the town supervisors, city aldermen or village trustees. If the fence viewers determine that the fence has not been properly built or maintained, they direct the delinquent owner to repair or rebuild the fence within a reasonable time. If the owner does not comply, the neighboring owner may repair or rebuild the fence and have the fence viewers determine the delinquent owner’s share of the costs. If the delinquent owner does not pay, the neighboring owner can then file a certificate of the fence viewers’ determination with the town clerk and receive payment from the town treasury. The town will then place a tax lien on the delinquent owner’s property to reimburse the fence repair costs.

Tracy Rucka is a Staff Attorney for the WRA.