Restrictions on Real Estate

Private Restrictions on Real Estate

• These restrictions begin with Encumbrances which are restrictions and limitations on the fee simple ownership rights that generally run with the land.
• These are covenants, conditions, and restrictions on the land that limit the way a property owner can use a given property.
• These conditions can be seen in many different ways such as Deed Restrictions, Liens, Easements, Profit a Prende, as well as Adverse Possession .
• Essentially these restrictions can limit the rights that property owners have depending on what the situation is for there are many different types of restrictions.

Here is an example from 2009 of a dispute over the private restrictions on a piece of real estate.

A local developer of Athens County, Brent Hayes, is appealing their decision to place a width restriction on Twp. Road 31A, a right-of-way that leads to his property near Route 56. Hayes proposed reopening the road to access a large parcel of land he purchased beyond the property of Stan and Paige Alost of Ervin Road. According to the Alosts, the former road is their driveway.

On July 7, the commissioners decided to not vacate the Twp. Road 31A right-of-way, denying the request of the Alosts. Twp. Road 31A hasn’t been used since 1972 and cuts through the Alosts’ property. However, in an attempt to please both parties, the commissioners set a right-of-way width restriction of 16 feet to lessen the impact of the road on the Alosts’ property.

The width restriction prevents Hayes from creating any development other than a single home on the 120-acre parcel. Hayes believes the county requires at least a 24-foot wide road for the development of a subdivision. He said infrastructure, such as water and electricity, would not be able to be extended along such a narrow, 16-foot right-of-way.

 

Brumfield, Sara. "Developer: Commissioners' road restrictions too narrow." AthensOhioToday.com. 2009. Web. 31 Jan. 2013. <http://www.athensohiotoday.com/news/developer-commissioners-road-restrictions-too-narrow/article_b74e0dcc-f26f-5ceb-8805-3d89e9063dac.html>

 

This causes many problems for the developer. He wants to develope the land into a subdivision of homes but due to the restrictions set by the county on this deal he feels he will be unable to attain the full value of his land. Since the 16-foot restriction is so small compared to the 24-foot he sees a big problem in terms of utilities as mentioned above. Sometimes there is nothing you can do about restrictions on your land even if it hurts the value but this is where savy developers must find ways around such things or settle with a lower value.

 

Public Restrictions on Real Estate

• These are government created restrictions on real estate that limit ownership.
• This includes things such as Property Taxes, Eminent Domain, and Police Power.
• Police Power enables governments to have the power of regulation to protect the public, this leads us to the Comprehensive General Plan.
• This plan looks 15 to 25 years into the future and contains an analysis of the future as well as plans for transportation, publiic facilities, land use.
• Along with this plan, Police Power, includes the Zoning, Intensitiy of Use, and Building Codes that are set by the government to protect the public health, safety, well-being.
• There can be many issues with these three and can harm or even kill the value of a property or project for example if the land you own is zoned for residential then you cannot use the land for commercial purposes and other issues like this such as not following building codes can halt a project in its tracks.

Here is an example in 2013 of a dispute over a zoning issue which is a public restriction on real estate.

 

The Golf Club of Avon Connecticut  wanted to sell excess acreage to a residential developer. The developer ran into resistance from the Avon Planning & Zoning Commission, which refused to grant the developer a variance from zoning restrictions that limited the land to use as open space. Claiming that the Commission’s actions were “illegal” and “arbitrary”, the developer and the club filed a lawsuit. The lawsuit appears to have captured the attention of the Avon municipal authorities.They managed to reach an agreement in principle, where the Planning & Zoning Commission–assuming the settlement is approved at an upcoming public meeting–will reverse its earlier denial of the rezoning application. To address the loss of the open space, the settlement calls for the developer to pay a monetary fee.

 

Harris, Rob. "Lawsuit By Developer Persuades Town To Grant Zoning Change." Gold Dispute Resolution. 2013. Web. 31 Jan. 2013. <http://www.golfdisputeresolution.com/?p=2730>

 

This example is clearly a zoning issue which falls under public restrictions on real estate. The land was originally zoned for open space therefore the developer was unable to use the land in the way it wanted to so they brought a lawsuit upon the Commission to motivate them to grant the developer a variance from such zones restrictions. Sometimes developers are not successful in getting granted a variance and if that is the case then the project is stopped dead in its tracks, since they cannot use the land for whatever purpose they intended.