Land Use Restrictions Flashcards
PRIVATE RESTRICTIONS
Prior to building any type os structure, a property owner should check private and public restrictions.
Public restrictions include:
Local building, housing and health codes, zoning restrictions and subdivision
Regulations.
Private Restrictions include covenants and conditions found in deeds and other written agreements.
Usually there are private restrictions and zoning restrictions on the same property.
When there is a difference in the degree of restrictions between the two, whichever is most restrictive has priority.
If a zoning regulation permits a specific use of a property, but private restriction in deed limits that use of the property, the deed restriction would prevail.
If the deed permitted specific use, but the zoning regulation limits that use, the zoning regulation would prevail.
PRIVATE RESTRICTIONS
A property owner has a right to restrict the future property he sells to another. When he does, he creates a private restriction.
Private restrictions are considered encumbrances. They are restrictions created by no government entity but created in deeds or other written agreements by property owners.
CREATION OF PRIVATE RESTRICTIONS
- A grantor placed in a deed upon sale of the property. Through this deed restriction, the seller is able to limit or control the buyer’s use of the property. The restriction may remain on the property forever, binding all future owners.
- A testator and placed in will
- An agreement between 2 or more landowners
- A developer or subdivided, as general plan restrictions at time of filing a subdivision plat. These may be listed in a recorded declaration of restrictions, often called CC&Rs
Or in some cases shown on the plat itself.
When this is the case, individual deeds will not contain the restrictions but will refer to the recorded declaration instead.
- A lessor in a lease to restrict the lessee’s use of the property.
PURPOSE OF RESTRICTIONS
Private Restrictions may be for any purpose that is not illegal or against public policy.
The existence of an unenforceable restriction does not have any effect on the conveyance of the title. The restriction will be unenforceable but the remainder of the deed will be valid.
VALID restrictions may be:
- Personal Restrictions created by the grantor to satisfy a personal concern( I.e. a restriction that no alcoholic beverages can be consumed or sold on premises, or certain plants or trees must remain on land. )These can be enforced by grantor or heirs.
- For the benefit of the land retained by the grantor ( ie. Building or tree height limitation to preserves a view from grantor’s property). These restrictions can be enforced by grantor or any future owner of property sold.
- For the benefit of property sold, restricting the use of the property retained by grantor to enhance the value of the property sold. These restrictions can be enforced by any future owner of the property sold.
- General Plan Restrictions (CC&Rs). Created by subdivision developer to enhance the marketability of the property in the subdivision by prohibiting incompatible uses of the property w/in the subdivision.
These restrictions can be enforced by any owner affected by the restrictions.
COVENANTS AND CONDITIONS
Private restrictions may be covenants or conditions.
Most restrictions in the CC&Rs. Are covenants
Covenants Is a promise not to violate the restriction.
It may:
Control the style, ht.,size and location of homes to be built on the lots.
Specify minimum cost of construction for improvements
Control appearance ie paint color, limit size and type of fences, prohibit parking vehicles other than cars in driveways,
Limit the number and types of pets in the neighborhood.
Often developers will establish a homeowners’ association to review building plans and alteration proposals and to assure violations do not occur.
COVENANTS AND CONDITIONS
General Plan Restrictions run with the land . They usually have a time limit , often to the useful life of the original buildings. They may be amended with a 100% of AOAO owners or a lesser % as stipulated in the declaration.
In the event of a violation, the customary procedure is to enforce the restriction is to apply for an “injunction”.
The injunction is used to prevent a violation or to remedy a violation.
If an injunction is not appropriate option to pursue, the violator could be sued for damages to compensate those entitled to enforcement for any loss they may have suffered as a result of the violation.
COVENANTS AND CONDITIONS
However, enforcement of these restrictions may be denied by a court of law if:
Enforcement is not reasonable.
There is an indication. The restrictions have been abandoned
There has been any undue delay ( referred to as “laches”) in enforcing the restriction
The person seeking to enforce the restriction has violated any of the same restrictions
COVENANTS AND CONDITIONS
Enforcement of these restrictions may be denied by a court of law if
Enforcement is not reasonable.
There is an indication that the restrictions have been abandoned
There has been undue delay (referred to as “laches”) in enforcing the restriction
The person seeking to enforce the restriction has violated any of the same restrictions
A private restriction is a “condition “ when it provides that a violation will cause the title to revert to the grantor or his successors in interest.
The condition is therefore a reverted clause.
Upon learning of a violation, the grantor or his successors may declare a forfeiture of title and sue to recover possession of the property.
In additions , any encumbrances created by the violator may be ordered removed by the court before the property is returned to the person creating the condition.
Since violation of a covenant will result in an injunction or payment in damages and violation of a condition results in loss of title, conditions are harsher than covenants.
A condition is a qualification of the estate granted. It creates a defeasible fee estate that will run with the land into the indefinite future.
Since it gives the granteetitle only so long as the condition is complied to, it can be imposed only in a document conveying an estate.
On the other hand, a covenant being only a promise, could be found in any type of agreement and may either bind the original grantee only or bind all future owners.
PUBLIC RESTRICTIONS
The main method of implementing a state or local comprehensive plan is through ZONING.
A zoning ordinance is a restriction on the use of private land.
Zoning is not considered an encumbrance and does not title unmarketable, but violation of a zoning ordinance can create an unmarketable title.
While zoning ordinances do not independently create land value, zoning does have a huge effect on the value of real property. This is because zoning:
Regulates the use of land and the types and location of structures that can be built on the land through Bldg height and size limitations.
Regulates the use to which a structure may be put.
Designates the land area a building may occupy, typically through setback requirements, lot size requirements, yard areas and open spaces.
Designates the amoun of off-street parking is required
Controls density of use, by dividing the land into zones and regulating the type of activity that may be conducted on property in those zones.
Through PROTECTIVE ZONING communities are able to protect existing land users from encroachment by undesirable uses.
ThroughDIRECTIVE ZONING they ensure land uses in the future will be based on the highest and best use of the land and will be compatible with each other.
As part of urban planning:
Buffer zones may be planned to separate 2 incompatible zones
Aesthetic zones Ing requiring a certain type of architectural style
Incentive zoning may specify that a portion of land be devoted to specific purpose in order to obtains approval for certain concessions
Bulk zoning may control the density of uses by limiting buildings siza
Cumulative zoning may allow less restrictive uses in an area
Inclusionary zoning. May require certain uses to be included in a development, such as a certain percentage of the units for low and middle class families.
Exclusionary zoning may prohibit certain uses in an area ie liquor stores, tobacco or gun shops
ZONING requirements may:
Fix minimum front, side and rear yard setbacks
Limit the % of the lot that may be covered w/ a building.
Establish a minimum and maximum sq footage
May limit the relationship of the floor area of a structure to the lot size
Specify a maximum number of living units per acre
To be valid and enforceable, a zoning ordinance
Must serve a public purpose that relates to public health, safety, morals or general welfare.
Must be executed in a reasonable manner in accordance with due process requirements the 14th amendment of the constitution : it cannot be destructive, unreasonable, arbitrary, confiscatory or discriminatory
Cannot be retroactive
