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How do you go about amending a trust deed to sever the water…

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How do you go about amending a trust deed to sever the water rights?
Submitted: 8 years ago.Category: Real Estate Law
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Answered in 4 hours by:
6/19/2010
Real Estate Lawyer: Barrister, Lawyer replied 8 years ago
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 43,036
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified

Hello,

 

In CA, water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through an application process. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

.

Once the application or registration has been accepted, a priority is established in relation to other appropriators. For domestic registration, the State Water Board provides a Certificate of Registration which establishes general conditions under which the diversion may be made. When an application for a water right permit is filed, public notice is given to interested parties. This indicates an opportunity to file protests against the proposed application. If differences cannot be resolved, either a field investigation (for small applications requesting 3cf or 200 acre-feet per year) or a State Water Board hearing is conducted.

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If a permit is approved, it may be approved in full or it may be subject to specified conditions. The time frame involved in obtaining a license in California is highly variable. Permit decisions are required to be reached within six months on accepted applications for non-protested projects which do not require extensive environmental review.

.

.

Thanks.

Matt

 

 

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Customer reply replied 8 years ago
When we bought the property in CA in 1995 there was a well on the property and the water was leased to lake Hemet municipal water district. We paid $50,000 for the water rights and the lease agreement. In 1997 we sold the property and explicitly told the real estate broker that the water rights and well were excluded. We continued to receive checks for the water until the property was again sold in February 2010. The new owner contacted the lake hemet water district and said he now owned the water rights, so they sent him the checks. As it turned out the water was not severed from the grant deed as instructed in the escrow instructions. Now I have to find out how to have them severed and what steps should be taken.
Real Estate Lawyer: Barrister, Lawyer replied 8 years ago

To be perfectly honest, in a sale that occurred 13 years ago where water rights were not legally severed, I wouldn't have any idea how that could be legally challenged. I am not saying it couldn't, just that I don't know of a way.

 

I would suggest contacting a local attorney who specializes in riperian rights for a consult to see if he might have some legal avenue you could pursue.

 

I will opt out and maybe another Expert can chime in with a suggestion.

 

Don't reply to this "info request" or it will direct the question back to me and other Experts won't see it.

 

Thanks

Matt

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Real Estate Lawyer: socrateaser, Lawyer replied 8 years ago
socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 40,150
Experience: Attorney and Real Estate broker -- Retired
Verified

Hi,

 

Since you contnued to receive payments until last February, you would have had no reason to expect that the property rights were correctly transferred. If the escrow agency was required to prepare the necessary documents to maintain control over the well (which would have included an express easement in gross reservation in the deed), then you have a civil suit agains the escrow agent for malpractice -- though the malpractice is not for the failure to prepare the documents, but rather for failing to instruct you to "hire a lawyer." Similarly, your real estate agent, is only responsible for failing to tell you to "hire a lawyer," -- because in bot cases, your request would subect the real estate and escrow agent to being prosecuted for the unauthorized practice of law. Drafting specific documents with legal effect on California real property, is the exclusive domain of a licensed member of the State Bar of California. Real Estate professionals can do no more than "fill in the blanks" on a form agreement.

 

In sum, you can claim that you were poorly represented by the real estate agent and/or escrow agent -- each of whom should have instantly recognized that your escrow instruction was beyond the legal authority of either party to undertake. And, you may be able to obtain consequential damages for the effect of the failure to notify you of the issue.

 

And, if the buyer agreed to the escrow instruction, then you could sue for breach of contract. However, because there is a new buyer involved, that buyer's recording of a deed in his/her/its favor is conclusive as to ownership under California law, unless you can show that the new buyer had notice that there might be an issue with the water rights --which, I suspect may be extremely difficult to prove.

 

That pretty much "covers the waterfront." (sorry -- couldn't resist the pun).

 

For a real property or professional malpractice lawyer referral, see: http://www.abanet.org/legalservices/lris/directory/main.cfm?id=CA and www.martindale.com.

 

Hope this helps.

 

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