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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Lake Law 101 – Or: So You Want To Own a Cabin…

Owning a place ‘up north’ is the stuff of Minnesotans’ dreams. But along with the rustic setting and the sun-dappled shoreline, there comes a thicket of laws, regulations and potential boundary disputes that the wise would-be purchaser will get to know.

0416-LakeDockIt seems that owning a cabin in northern Minnesota is every Minnesotan’s dream. The lake, fishing, swimming and morning coffee on the dock seem like Paradise.

What is not so picturesque is the work and complications that come with owning a lake home. Upkeep and maintenance, land use controls, even the access road can shatter the dream. Understanding what you (or your clients) are getting into before you buy a lake home may help you cope with the joys and sometime-frustrations of owning a cabin.

First, as a disclaimer, my wife and her brother own a 1920s-vintage log cabin (literally built from virgin, white pine logs harvested onsite) in Cook County, up the Gunflint Trail on a BWCAW entry lake. Depending upon traffic, it is usually a five to six hour drive from St. Cloud. Once there, most summers there is a ratio of about two to four hours of work for every hour of relaxation. Still, it has been fun for our family to own a lake place to go to whenever we choose.

With this practical experience, and drawing from my experience as a lawyer (second disclaimer: my legal practice is primarily cleaning up real estate messes), here are some things to consider before you buy a lake home.

Land Use Rules

People who have grown up and live in an urban area sometimes come to the north land and see only open spaces, pine trees, and lakes. They forget that there are rules. In most of northern Minnesota it is not legal to add a deck, rebuild the dock, alter or cut shoreline vegetation, cut trees to get a better view of the lake, excavate a path for a new driveway or walking trail, or even remodel your cabin without first getting government approval. Sometimes approvals are denied because what you intend to do is not allowed under local ordinances.

Almost every county or township in outstate Minnesota (it may not be politically correct to say “outstate,” but to say Greater Minnesota suggests that the Twin Cities metro area is somehow Lesser Minnesota) has some form of land use ordinance.1 In addition, the Minnesota DNR has promulgated Shore Land Ordinances, which must be enforced by every county.2

No matter how small your project, check with the county or township—or, to be safe, both—to make sure that you are authorized to do the work.

As a practice tip, put in writing to the Land Use Authority exactly what you intend to do, and have them give you written permission. Once you get permission, do not deviate from your plan unless you get additional, written approvals. Counties and the Minnesota DNR will pursue violations. You could end up paying a fine, replacing illegally cut trees, even tearing down whatever it is you have illegally built.

Do not think that you are so far from town that no one (meaning the County Land Use Control Office) will even find out what you are doing, or that they may not care. Your neighbors will know and report your work to the zoning office. The DNR has been known to fly over lakes and report infractions.

Any work on a lake home is going to require a quick understanding of land use terms. Regulations may include building setback (the distance from the lake or adjacent property to your proposed building or improvement), impervious surface limitations (you are generally allowed to cover only 25 percent of your lot), bluff impact zones, lot of record, DNR lake classifications, ordinary high water mark (OHW) and many more. All local ordinances must be understood and respected.

Many counties interpret their rules differently from other counties. Some counties, as an example, allow paver type stones as impervious surface, while other counties have determined that they are not an impervious surface.

The Minnesota Construction Codes are not enforced statewide, but they apply statewide.3 Many counties do not enforce the Codes but require construction permits. Do not start a project unless you are certain that you have all needed permits.

If your project is not allowed under the local land use rules, there is usually a limited right to appeal the Zoning Administration’s decision, or to apply for a variance from the Board of Adjustment (BOA).4 But do not get your hopes up. The BOA members can sometimes be understanding, but more often they say no. The “practical difficulty” standard gives lots of discretion to the BOA. Whether or not the BOA uses that discretion is a local matter.

Always ask for the variance before doing any work. If you do something illegally, it will be discovered and you will be called to account. After-the-fact variances are rare. BOA members do not like to reward people who act first—particularly if the area code for your telephone number is 612. (You get my meaning.) The old developers’ adage that “it is easier to ask forgiveness than permission” does not work in most northern counties. If the BOA denies your request, you may appeal the decision to the district court. At the same time, if the board grants your request, the DNR and others may have the right to appeal that decision to the district court.5

Here is a little practical advice about suing the government on land use matters. First, most judges are not interested in getting involved in local land use problems. It is a rare case when a judge will overrule a local planning decision. And even then, the court may simply send the case back to the BOA for reconsideration.

Second, when you sue the government, you are really suing the government’s insurance company. Cities, counties and townships all have insurance that pays their legal fees to protect them from land use challenges in court. To the best of my knowledge, no government has ever “learned a lesson” by being sued. Often, by the time the litigation is resolved, the city, town or county cannot really remember the issue involved in the case. It costs the government almost nothing for their insurance company to defend the lawsuit. In the great majority of cases, suing the local government to keep your new precious and wonderful lake view will cost you money, you will likely lose and win or lose, and it will hardly be noticed by the local government.

Road Access

That path that you drive on to get to your cabin may or may not be a public road. Do not assume you have public access unless the title records are clear.

Lake shore roads are sometimes trails that by use over time have become semi-public. Sometimes roads are public, meaning the public may travel over the road, but the road is not maintained by the local government. You do not want to start your vacation with a drive to your cabin, only to find that the road has been blocked.

Even when you have a platted right of way or a town road order, the actual road bed might be laid out and used in an area outside the dedicated right of way. In times past, roads in plats and town orders were sometimes laid out through wetlands. The people who built the roads were not dumb. They simply built the roadway around the wetland or used an existing roadway without regard to the plat.

Sometimes you have an easement access across another’s property to your land. The same caution applies. Make certain that the roadway, as driven, lies wholly within the written easement. The reverse can be a problem if your lot is burdened by an easement. You may not be able to prevent your neighbor’s kids from racing 4-wheelers or motorcycles across your yard over their access easement.

If you end up with a property that has an access dispute, you may have to quickly become acquainted with cartways,6 public roads by use and maintenance,7 common law dedicated roadways8 or easement by prescription.9

Even when you have a public road, it may not be maintained at the level that you expect. Keep in mind that the county and the townships have limited budgets and a great deal of discretion on road maintenance, including snowplowing. While you own a cabin and pay taxes, you are not a voter. Your road may or may not be a priority. In short, you and your neighbors may have to fix your own potholes and plow your own snow.

Septic System and Well

People who have lived their entire life in the city with a municipal sanitary sewer need to get acquainted with a Private Sewage Treatment System (septic system).10 The first thing to understand is that there are two types of septic systems in Minnesota: septic systems that have failed and septic systems that are going to fail. When they fail, replacing the system can be expensive and complex. If you own a small lake lot, you may not have room to replace the system and your options may be very limited.

Replacing a septic system means you have a 50-foot setback from all adjacent wells (even your neighbors’ well), a setback from the lake and often from the lot boundary.11 If you are buying a cabin, make certain that the septic system works. Have it tested (usually required on all title transfers), find out its age and determine when (not if) it will need to be replaced. Also make certain that you have an alternative septic location on your lot.

Finding well water on a lake lot should not be a problem. Quality could be a problem. Have the well water checked before you buy your cabin. Old septic systems in the vicinity of your well, adjacent farming, and other human activity may deteriorate the quality of your well water. Drilling a second well is expensive, and you have to meet the same setback requirements from adjacent septic systems. If you need a new well, try to drill it at least 50 feet from a future septic system site.

Boundary Survey

Surveys start with the location of government corners set by the original government surveyors in the mid to late 1800s. The land in northern Minnesota was rough and difficult for government surveyors. It has been my experience that even taking into account the tools, technology and level of education available to the surveyors in the late 1800s, much of their work in northern Minnesota leaves a lot to be desired.12

Land along lakes was divided into government lots. This meant that land was not large enough for a full quarter section (about 40 acres). Instead of being surveyed, government lots were usually divided out by calculation and sold by quantity of acres. (The original value of northern Minnesota lakeshore land was in selling the timber, not 21st Century lake lots.)

It is very difficult today to resurvey a government lot on a lake. Almost every surveyor ends up with a boundary different from the prior survey. If you or your neighbor decides to survey your parcel of land within the government lot, you are probably going to end up with a boundary problem.

Plats are not immune from survey problems. Older plats, particularly those over 20 years old, were often laid out for small, seasonal cabins. They were not meant for the larger McMansion, year-round homes that we all want today. Sometimes the surveyor who laid out the plat sat in his office and drew it up. He simply calculated (meaning guessed) the area and boundaries, and laid out the lots without actually surveying the property. Often the lot sizes shown on the plat do not fit the land on the ground.

I am hesitant to recommend that you not survey the property you intend to buy, but you should be aware that if you survey it and if the survey is done properly, you may end up with a boundary problem. Even then, your survey may be no better than the prior survey. The only permanent solution I know of is to register title under Minnesota Statues Chapter 508 and set judicial landmarks at the corners under Minnesota Statutes Section 559.25.

Inheriting the Family Cabin

It might be that mom and dad have had a family cabin for many years and now wish to pass it on to you and your siblings. Good idea in principle, but fraught with problems in practice. When mom and dad owned the cabin, they probably took care of the maintenance and paid the taxes, insurance, utilities and other bills. Family members could use it and life was good.

When the cabin passes on, suddenly you have siblings who live in different parts of the world, with different incomes, and with different expectations of the use, decoration and maintenance of the cabin. Someone may decide that they do not want the cabin and demand to be bought out at fair market value. In far too many cases, mom and dad never anticipated these problems and it is left to the kids to work it out.

If you inherit a lake property, it is a good idea to decide early on who is responsible for maintenance, how expenses will be paid, who gets to use it and when, and what happens if somebody wants to sell. Some families have the cabin put into a trust, some form an LLC, a partnership or other entity. All of this sounds good, but you still need cooperation. I hope that your family does not need to become acquainted with a partition action.13

There is no simple solution to joint family ownership. Cooperation and communication is best. Even then, life changes. What might have worked for the first 10 years of ownership may not work for the future.

Conclusion

While there is much joy in owning a lake property, sometimes difficult, practical legal issues can arise. It is great to have a place to go and get away, with your family, to create memories. Just keep in mind that it is not all fun.


DAVID J. MEYERS is a shareholder with Rinke Noonan, St. Cloud. He is a Real Property Specialist,
and serves as Examiner of Titles for 5 Minnesota Counties.

 


 

Notes

1 See Minn. Stat. Sec. 394.21 et. seq. for County Land Use Rules and Minn. Stat. Sec. 462.351 et. seq. for Township and City Land Use Rules.

2 Minn. Rules 6120.3300.

3 Minn. Stat. Sec. 326B.121.

4 Minn. Stat. Sec. 394.27.

5 Minn. Stat. Sec. 394.27 Subd. 9.

6 Minn. Stat. Sec. 164.08.

7 Minn. Stat. Sec. 160.05.

8 Sackett v. Storm, 480 NW 2d 377 (Minn. App. 1992).

9 Rogers v. Moore, 603 NW 2d 650 (Minn. 1999); Minn. Stat. Sec. 541.02

10 Minn. Rule 7080.1050, et. seq.

11 Minn. Rule 4725.4450.

12 See, as example: Ruikkie v. Nall 798 NW 2d 806 (Minn. App. 2011).

13 Minn. Stat. Sec. 558.01 et. seq.

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