The world of real estate has a lot of jargon, which can make it difficult to understand for someone unfamiliar with the law. What is an easement? What is a variance? An estoppel? Adverse possession? Eminent domain? Below, we break down some of the basic terms and issues that come up in real estate matters.
The right to property is implicit in the Declaration of Independence, which declares that we all have the right to “life, liberty, and the pursuit of happiness.” In the Bill of Rights, property rights are more explicitly protected from violation by the government or other actors. The Fifth Amendment states,
“Nor shall any person…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The founding documents of The United States thus protect your rights to own and use your property to pursue happiness and success in your own business and private life. However, there are some exceptions to this, and that is where all the legal jargon comes in.
As the Fifth Amendment describes, the government can take private property for public use if 1) it is done according to the due process of law and 2) they provide just compensation. The government’s authority to mandate the sale of property is called eminent domain. For example, cities exercise eminent domain frequently when widening roads. If a measure passes due process, such as a public hearing and committee approvals, a government agency could take a portion of someone’s yard to add another lane to a busy road, as long as they provide compensation at the fair market value of the property. This is important to understand if the government starts to make developments near your land.
Another power the government has that affects most real estate matters is zoning. This is when cities and counties divide land into zones designated for specific purposes, such as residential or commercial use. For example, to create a healthy living environment, governments may restrict waste facilities or factories to be far from neighborhoods. Zoning regulations may also be more specific, such as requiring a minimum distance between buildings or a certain number of parking spots per occupant in an apartment complex. It is important to know the zoning regulations that apply to your property so you can maintain compliance.
Variances are exceptions to zoning requirements. A property owner can appeal a zoning requirement on the grounds that the variance is necessary to fully enjoy their property right. For instance, a business might be granted a variance on a parking spot requirement if their lot is too small to comply with the requirement or has a steep slope that would make installing such parking too difficult. Another type of variance is granted when a structure or use was compliant when it was first built or established, but the zoning requirements have since changed. Such variances are often called “grandfathered uses.” Historic buildings frequently have grandfathered uses.
In addition to zoning, easements can impact your ability to use your property. However, they may also allow you to benefit from use of others’ property. For example, whether by agreement, by longstanding use, or by necessity others may be allowed to use a road or path on your property to access theirs. Another type of easement is a temporary construction easement. These allow contractors or government agencies temporary access to your property for use while they complete a project for the public benefit. They expire when the project is completed. For example, a utility company may be able to park their equipment in your company’s parking lot while they complete work on nearby underground piping.
Definitions and brief explanations are useful, and you can learn more basic information on the Office of the Property Rights Ombudsman Utah website but effectively navigating the complexity of real property law requires intense training and years of experience. If handled poorly, easements, zoning requirements, or liens could impact your property rights. Our qualified, friendly attorneys are here to help protect you and your property as you navigate the complex world of real property law. Contact Sumsion Business Law to get answers to your real estate questions.