Eighteen Acres, a Trust Sale, and Water in the Ditch
Grant and Lisa are buying 18.4 acres in Canyon County for $865,000. The parcel has a 1978 house on a permitted well, a 1985 septic system, and a 2,400 sq ft shop with a bathroom and 220-amp service that the seller's late father built in 1999 without permits - no final inspection was ever recorded. Irrigation water comes from a local irrigation district through shares the family has held since 1962; a wheel line irrigates about 12 acres of alfalfa. The neighbor's fence sits roughly 8 feet inside the north property line, and the neighbor has grazed that strip for years. Title is held by the family trust; the seller is the successor trustee who has never lived on the property. The buyers want to carve off 5 acres for Lisa's parents within two years.
1. What must the buyers confirm about the irrigation water before removing contingencies, and what happens to it after closing?
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Do not assume the water follows the dirt.
- In Idaho a water right is real property appurtenant to the land and passes with a deed unless expressly reserved - but the evidence of district-delivered water is often a share certificate, which is personal property transferred on the district's books by separate assignment. Get the assignment executed at closing and confirm the district's transfer requirements and fees.
- Confirm at IDWR: the license or permit number, priority date, diversion point, place of use, and the acres actually covered. Check the annual water-use records for the last five years; Idaho treats extended nonuse as prima facie evidence of forfeiture, so a right that has not been beneficially used is a real risk, not a technicality. Verify the current statute and IDWR records rather than relying on the seller's word.
- The planned 5-acre split is the trap. Changing the place of use or point of diversion requires an application to IDWR and can take months; the district must also consent to service. Advise the buyers, in writing, that carving off acreage may not carry water with it.
2. How should the disclosure and inspection plan be handled for a trustee who never lived there and an unpermitted shop?
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Get the form, but do not build the file around it.
- Idaho's residential property condition disclosure statute requires a seller disclosure form for most residential transfers, and it requires disclosure to the extent of the seller's actual knowledge; a trustee who never occupied the property may answer "unknown" where that is honest. Trust records are still knowledge: the 1999 invoices, permits, and correspondence belong to the trust, not to the trustee's memory.
- Some transfers are exempt from the form - including certain fiduciary, estate, foreclosure, and court-ordered transfers. Whether this trust sale qualifies must be checked against the current statute, and the agent should not guess. Exemption from the form has never excused fraud or intentional concealment of a known material defect.
- Recommend, in writing: county permit and inspection history for the shop; a home inspection; a sewer scope or a health district evaluation of the 1985 septic; a well test for flow, coliform, nitrates, and arsenic where the area is known for it; a survey; and a contractor's estimate to permit or remove the shop improvements.
- Tell the buyers the shop's unpermitted bathroom and electrical may affect insurance, appraisal, and future resale. Do not characterize the shop as "grandfathered" - that is a zoning conclusion for the county, not for the agent.
3. What should be done about the fence and the neighbor's cattle before closing?
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This is a title and possession problem, not a fence problem.
- Order an ALTA/NSPS survey tied to the title commitment and give it to the buyers and lender. Find out whether the title company takes an exception for the encroachment or whether the lender will require a survey endorsement.
- A fence line does not establish a boundary, but long, open, hostile use plus payment of taxes can support an adverse possession or prescriptive easement claim under Idaho's statutes, one of which uses a comparatively short five-year period conditioned on tax payment. Verify the current statute before advising; do not promise the strip is the seller's.
- Practical resolutions, in order of preference: a boundary line agreement and quitclaim deed with the neighbor; an easement or license documented in the record; or a lot line adjustment through the county.
- The buyers must be told in writing what is being conveyed and what is not. If the strip is lost, the acreage and the irrigation coverage should be re-verified. Where the seller will not resolve the encroachment, escalate to the title company and attorneys before closing rather than after.