Land Use Controls and Regulations
Government and private parties both limit how land may be used. This topic covers the government's inherent powers over land, public zoning tools, and private controls such as deed restrictions. Brokers must be able to spot a use restriction that could kill a client's plans before a contract is written.
Government Powers Over Land
Four traditional government powers exist over private property, remembered as PETE: Police power (regulating use for public health, safety, and welfare, such as zoning and building codes), Eminent domain (taking property for public use through condemnation with just compensation), Taxation (property taxes, which become a lien), and Escheat (property reverting to the state when an owner dies with no heirs and no will). None require the owner's consent. A regulatory taking can occur when a regulation goes so far that it deprives an owner of substantially all economic use.
Zoning and Public Land-Use Tools
Zoning divides a community into districts and regulates use, density, height, and setbacks. A variance permits a departure from the rules due to hardship; a conditional (special) use permit allows a specified use such as a school within a district; and a nonconforming use is a lawful pre-existing use allowed to continue after new zoning ('grandfathered'). Building codes and subdivision regulations set construction and development standards, and a certificate of occupancy confirms a structure is fit for use. Brokers advising developers should understand how master plans and planned unit developments (PUDs) blend uses.
Private Land-Use Controls
Private restrictions limit use without government action. Deed restrictions and restrictive covenants (often called CC&Rs in a subdivision or common-interest community) are created by developers or prior owners and run with the land, binding future owners. When public zoning and a private restriction conflict, the more restrictive of the two generally controls. Easements grant a right to use another's land for access or utilities and are an encumbrance on the servient estate. A broker who fails to disclose a known private restriction that defeats the buyer's intended use exposes the firm to liability.