YOU NEVER DREAMED THIS COULD HAPPEN TO YOU
IMAGINE THIS SCENARIO
You just found the most magical piece of mountain property to build your future dream home. The property is well-treed and extremely private with amazing views of white-capped mountain peaks. It was a snowy spring day when you saw the property and the thought of wildfires just weren’t on your mind. You move forward with an offer and after you’ve been under contract for a few weeks a wildfire strikes. Surprise. You now have a pending contract on a burn zone. The magical forest that was is no longer. What happens next? What are some of the important (and often overlooked) details a buyer should consider when writing an offer on land?
As Boulder recently experienced with the Sunshine Canyon fire, wildfire can strike quickly and unexpectedly. Best to be prepared and know how to protect yourself. We consulted local real estate attorney, Renita Jolley of PackardDierking to help us answer some of these questions.
Q/8030: What is one of the “must-have” additional provisions a buyer should consider when writing an offer on vacant land?
A/RENITA: Assuming the parties are using the CREC (Colorado Real Estate Commission) form Contract to Buy and Sell Real Estate (Land), an additional provision should be added that gives the buyer the specific right to terminate the contract at any time before closing and have the earnest money refunded if the vacant land is damaged by fire, flood, mud slide, rock slide or other similar cause. Although a provision does exist to protect buyers from having to proceed with the contract if fire or some other peril takes place prior to closing, it does stipulate that the damage must be more than 10% of the total purchase price. Proving and quantifying the damage can be difficult. Moreover, if the damage is less than 10%, even if the items or property damaged were important to the buyer (such as the property’s privacy from a neighboring home), the buyer may be forced to proceed with the contract or risk losing his or her earnest money deposit.
Q/8030: What critical factors should buyers consider when contemplating properties with high risks of wild fire, flood or other natural disasters?
A/RENITA: If a buyer is purchasing vacant land (especially in the mountains) with the intent to build a home on it, the buyer should, among other things, consider the following:
1. The location’s history with respect to fires, floods, mudslides, and other natural disasters, as well as the risk of these events happening in the future;
2. The condition of the land and trees, and whether the condition poses a greater risk of fire, such as the existence of extensive beetle kill damage;
3. Whether the actual boundaries of the property coincide with the information that has been given to the buyer by the seller (all buyers of vacant mountain land should obtain a survey from a reputable surveyor);
4. Whether there is, and the means of, access to the property (Is the sole access to the property through someone else’s property, or is there access by road? If a road, is it a dirt road or paved? Is the road private or County?);
5. Whether there is a reliable source of water available to the property, and the types available (Is City water available? Can a well be dug? What is the quality and flow of the water for nearby properties?) and the types available;
6. Whether neighbors or others have rights to access and use or extract minerals from the property, and whether others are currently using or have historically used the property without the permission of the owner; and
7. The costs to obtain casualty insurance for the property during construction of the home and after construction is completed.
8. Be aware that casualty insurance is typically not available for vacant land – therefore no coverage may exist for loss of views or trees on the property due to fire once the property is purchased.
Q/8030: Although using a real estate attorney is not required in the State of Colorado, why should a buyer or seller consult with a real estate attorney before make an offer on a piece of real estate?
A/RENITA: The purchase and sale of property can pose substantial, lasting and unanticipated risks, so I would recommend consultation with a competent attorney for most transactions.
Renita Jolley has practiced law in Boulder since 2003.