Jan 31 2008
Some Controls On Developing Property
None of us has an absolute right to use and develop property. Government has broad police powers to protect the safety, health and welfare of the public. This power takes the form of land use laws enacted by Congress and state legislatures. State laws delegate to local governments the right to regulate land use and development within their borders. The scope and content of these laws vary from state to state, as do ordinances adopted by individual municipalities.
Municipalities look at their present and projected needs, natural resources and existing facilities. As part of their land planning process, they adopt comprehensive or master plans that detail short and long term goals and objectives. To implement them, they create zoning maps and adopt zoning ordinances with a range of residential, commercial and conservation classifications or districts. These districts permit different uses with varying densities and restrictions.
Local governments also enact subdivisionand land development ordinances that spell out how property can be divided and physically developed. During the approval process, applicants have their engineers prepare and submit detailed plans for their proposed developments. These plans are scrutinized and reviewed by a host of individuals and agencies at the local, state and federal levels.
Individual land owners can also place limitations on their properties. Once these restrictions are recorded, they remain in effect for all subsequent owners unless the covenants provide otherwise. Although these provisions cannot violate applicable zoning and other laws or be less restrictive than them, they can be more restrictive.
Property owners place limitations on their land for a variety of reasons. Sometimes religious or personal principles are the catalyst where, for example, owners prohibit the sale of alcoholic beverages on property that would otherwise be permitted by the zoning. Other deed restrictions evolve from the belief that by limiting development they will preserve or increase the value of their properties. Architectural covenants, for example, may require that all future structures built on a property be of a certain minimum size or style, or that structure exteriors use specific types of building materials (such as natural versus man-made). Particularly troublesome are provisions giving owners the right to approve building or development plans before they can be implemented.
Occasionally, these types of restrictions do achieve the desired effect, but more frequently, they have the opposite effect on value. Since value is directly related to use, provisions that limit the potential use of a property reduce the number of potential purchasers for it, and this is likely to result in decreased property values. When owners forget to think like sellers, they fail to look at the big picture.
They fail to take into account how a proposed action may impact the value of their property in the future or even their ability to sell it.
It is absolutely critical that the language of the deed restriction be clear and unambiguous. The acid test for contract provisions should be applied to restrictive covenants. The provision should be written so that anyone reading it will know precisely what it means and that everyone reading it will have the same understanding.
Ambiguity hurts everyone, and sloppy draftsmanship only increases the likelihood of litigation and problems that could easily have been avoided. Before you buy or sell a property for development, it is important that your attorney review copies of the property deed and any related documents to ascertain what, if any, restrictions exist.
Nancy Chadwick is a PA licensed real estate Broker and Instructor specializing in land brokerage and development. Her experiences and land courses provided the foundation for her books Land Buying & Selling and Selling Land: The Owner’s Guide available at http://www.landbuyingandselling.com/
Tags: deed restrictions, development property, real estate development, zoning
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