Real Estate Transactions

What does it mean when something is said to be "grandfathered in" for zoning purposes?

What is "conveyancing"?

What is "eminent domain"?

What is "condemnation"?

What is a variance?

Q: What does it mean when something is said to be "grandfathered in" for zoning purposes?

One goal of zoning is to separate property uses into distinct zoning districts (residential, commercial, industrial, etc.) and to keep uses within each zone uniform. For example, if a district is zoned for residential use, no businesses will normally be permitted to open there. But, what happens to a business that existed and was operating prior to the time when it's location was zoned residential? At this point, the constitutional prohibition against taking property without just compensation comes into play. If a use predates the zoning plan, it will be permitted to remain, because the government lacks the power to simply close a business in a zone that becomes residential, or require a home in an industrial zone to be torn down, unless it is willing to compensate the owner for the loss. Such exceptions are called nonconforming uses. Commonly, the portion of the zoning statue allowing prior nonconforming uses is called a "grandfather clause" and such a use is said to be "grandfathered in." Nonconforming uses, however, are not exempt from all zoning regulation. While they cannot be taken (without compensation), the government is not required to allow them to change or expand. The use is generally limited to what existed when the zoning ordinance was adopted. Also, if the nonconforming use is abandoned or ceases, the "grandfather" rights are lost, and the nonconforming use cannot be restarted at a later date. Under many laws, if a nonconforming structure is destroyed by fire or other cause, it may not be rebuilt. The hope is that with these restrictions in place, nonconforming uses will phase themselves out over time.

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Q: What is "conveyancing"?

Conveyancing is the art of transferring property from one owner to the next. It involves the technical requirements necessary to create a valid deed, mortgage, or other instrument. It also involves advising the purchaser as to the various options available by which title to property can be taken and held.

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Q: What is "eminent domain"?

Eminent domain law deals with the right of governments and private companies exercising public functions to take land for public purposes. It is closely related to condemnation, which is the process by which the land is actually taken. Eminent domain law also deals with situations where a landowner wants to force the government to take and pay for property on the theory that the government's activities already amount to a taking for which compensation is required.

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Q: What is "condemnation"?

Condemnation is the process by which the government takes property for a public purpose and determines how much it must pay the owner to do so. For most individuals, the most important aspect of a condemnation proceeding will be obtaining a fair price for the land.

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Q: What is a variance?

The theory behind state and local zoning ordinances is that uses within a particular area should be uniform. While this system generally works well, obviously there will on occasion be the need for exceptions to the general rule. Depending on the needs of the individuals involved, and the impact on the neighborhood as a whole, it may be possible to change the zoning on a particular property by obtaining a variance. A variance is permission to depart from the requirements of a zoning ordinance in one or more particulars. Generally, a variance request is granted or denied through administrative action. Variances can be divided into area variances and use variances. An area variance may be requested where the use is permissible, but does not quite fit the property. For example, if an owner wanted to add a deck to his or her home that would violate the minimum setback requirements of the zoning regulation, or wanted to build a two-story garage, which exceeded the height requirement, an area variance would be required. By contrast, the use variance relates to a use of the property that is otherwise impermissible in the given zone. If, for example, a landowner wanted to build a grocery store in a locality zoned exclusively for residential purposes, a use variance would be required. Generally, a use variance will be harder to obtain than an area variance. The land owner requesting the variance must show undue hardship that is not self-imposed, and must demonstrate that the variance would not harm the public welfare, have not an excessive impact on the general zoning plan, or would not adversely impact surrounding property values. The requirement that any hardship not be self-imposed is of particular significance. The purpose of this requirement is to prevent an owner from building a nonconforming structure and then seeking a variance for it on the grounds that it would be a hardship to tear it down.

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