| PROPERTY RIGHTS AND RESTRICTIONS
Q. What are my rights as a homeowner?
A. Generally, what you do with the home you own is up to you.
You have a right to
maintain or neglect, preserve or remodel, keep, sell or give away, and
enjoy your home as
you see fit. These rights, however, are limited by federal, state, and
local laws and statutes.
For example, under the federal Fair Housing Act, you may not discriminate
when renting
your property. In terms of local statutes, your home must conform to zoning
and building
codes in your municipality. If your garage is falling down and thus creating
a potential
hazard, the community may be able to force you to repair or raze it. Likewise,
zoning
codes may prevent you from adding a three-story addition.
Although the rights our society and the law afford to homeowners are extensive,
they are not absolute. The people who live around you also have rights,
so the law places
certain restrictions on the use of your property. If you are not mindful
of zoning, building
codes, easements, water rights, and local ordinances on noise, you could
find yourself in
trouble.
Rights to Natural Resources
You may use, sell or restrict the use of your property's natural resources,
from stands of
timber on the surface to minerals lying beneath. Note, however, that because
surface and
underground water, oil, and gas move about without regard to property
lines, you don't
necessarily have the right to pump out as much as you want from a well
on your property.
Removing resources such as these is subject to state and federal regulation.
For example,
if there is a stream running through your land, in most states you cannot
dam it up to the
point where downstream neighbors do not get water.
Zoning Limitations
Q. How do zoning codes affect my property rights?
A. To avoid urban mishmash, municipalities often restrict business
and industry to
particular designated areas. Other areas are zoned residential, including
apartment
buildings, or zoned strictly for single-family homes. If your neighborhood
is zoned
residential, you won't have to worry about a pool hall or gas station
going up next to your
house, but it also means that there are certain restrictions on what you
can do with your
property.
Zoning laws vary among communities. While some municipalities mandate
few if
any zoning restrictions, others enforce very strict zoning laws, controlling
such items as
the maximum size of a dog house and the height of a fence. If you are
planning to build
any sort of addition or new structure, check with your local building
department about
zoning restrictions on your property. If you are still unsure, consult
a lawyer.
Q. Can zoning codes prohibit me from running a business in my
home?
A. A typical residential zoning law probably would not preclude
you from operating a
home-based business that would not alter the character of the neighborhood,
such as
telephone sales, freelance writing, or mail-order distribution. But if
the home-based
business will require signs and frequent traffic from customers, check
with the local
department of building and zoning before making any kind of investment.
Also, be sure to
ask about anything you must do to license your business.
Q. Is there a way to avoid zoning restrictions?
A. Most communities allow you to apply for a variance if you
wish to make a minor
change to your property that would violate zoning restrictions. Essentially,
a variance is
permission from the governing body to deviate from the zoning laws. The
zoning
department can provide materials explaining how to seek a variance. The
steps may
involve a public hearing, an appearance before the planning commission,
and approval by
the town governing board. It is up to you to show that the proposed change
is required by
a hardship caused by the shape, condition, or location of your property,
and will not alter
the character of the neighborhood or reduce neighboring property values.
If your plans call for a major change, you may apply for a zoning change.
For
example, if you live near the boundary of an area zoned commercial and
you want to turn
your 19th-century house into a doctor's office, you might be able to persuade
the zoning
authorities to extend the boundaries a bit. Again, you would have to show
that the change
would not hurt property values and convince your neighbors that it would
not diminish
their property rights.
Restrictive Covenants
Q. What are covenants?
A. Covenants, also called conditions, consist of private restrictions
designed to maintain
quality control over a neighborhood. A builder may draw up covenants affecting
a new
subdivision he or she is developing, although they also exist in older
subdivisions.
Covenants typically restrict such things as lot size, square footage,
and architectural
design; they also may prohibit satellite dishes, boats and motor homes,
certain types of
fences, and unsightly activities such as auto repair.
Q. How do covenants affect my property rights?
A. Covenants "run with the land," which means that
they bind all future owners of the
property unless all property owners in the affected subdivision join in
releasing them.
Covenants may restrict your use of your land even if municipal zoning
laws permit the
proposed use. You should have received a list of the covenants from your
real estate agent
when you bought your home. If not, a list should be available from any
existing
homeowner association. As with zoning codes, you may be able to negotiate
a minor
variance, such as building an addition slightly higher than the covenant's
limit.
Note that covenants must comply with state and federal laws. Old covenants
that
prohibit homeowners from selling their homes to persons of certain races
and religions are
not enforceable.
Easements
Q. What is an easement?
A. An easement on your property indicates that someone else may
have a right to use part
of it for a specific purpose. A common example is a power company's easement
to run a
power line over your back yard. The developer normally establishes these
types of
easements when the subdivision is plotted or the house is built in order
to provide utilities
to the development.
Neighbors also may have an easement on your property, whether to use your
driveway to get to their house (a positive easement) or one that restricts
you from blocking
their view of the lake (a negative easement). Or they might have a profit
(short for the
French term profit a prendre, which means "profit to be taken"),
allowing them to remove
something from your property such as raspberries, coal, or timber.
Q. How are easements created?
A. An easement or profit may be created by a deed, by a will,
or by implication--such as if
a previous owner divided a single lot in half and the only access to the
back lot may be
through the front one. Or, if a neighbor has been using your property
in some way for a
long time, such as by driving on your private road, he may be able to
secure a prescriptive
easement to continue doing so whether you want him to or not. Courts are
willing to grant
prescriptive easements when the neighbor has been engaging in the activity
in question for
a period of years that varies by state (usually between five and fifteen
years) and the
property owner has not physically stopped him, such as by erecting a locked
gate. Oddly,
one of the requirements for gaining a prescriptive easement is the property
owner's
objections--such as your telling him not to drive on your road over and
over for years,
without putting up a gate. The reasoning seems to be that if I give you
permission to do
something, you cannot claim it as a right.
Checking Out Easements
Easements are recorded at the county courthouse, but they may be scattered
among
various plats, deed books, and mortgage books. The best way to find
out about them is
through a professional title search, which most likely transpired
if you obtained title
insurance or an opinion of title before buying the house. If you discover
an easement,
check the wording. When a document grants an easement to a particular
person, the
restriction may cease when he or she dies or sells the property. But
if it's granted to
someone and "his heirs and assigns," it's probably in effect
no matter who owns the
property. Unless and until the easement expires, your legal obligation
is to refrain from
interfering with that right. |
Other Restrictions
Q. What other restrictions might affect my property rights?
A. If your home is listed on the National Register of Historic
Places, other restrictions may
exist. But generally, private owners are free to alter, add to, convert,
or even demolish
their home--even if it is on the historic places list. The only restriction
if a home is listed is
that no federally funded or federally licensed program may harm a home
on the list
without a hearing before a federal agency.
Some communities have their own historic preservation ordinances, which
may
affect what you can do to your property. In Marblehead, Massachusetts,
for example,
homes in the historic district are prohibited from exterior renovations
without permission
from a local committee.
Q. What about regulations on activities in my home?
A. The general rule is that activities in the privacy of your
home are your own business
with three exceptions: when your activities are illegal; when you are
violating zoning
codes, such as by running a prohibited business from your home; and when
the activities
make it difficult for other people to enjoy their own homes. Common sense
dictates that if
you mow your lawn at 4 a.m. or blast your stereo at midnight, you should
not be surprised
if someone calls the police. Local noise ordinances may restrict the hours
in which you
can conduct certain noisy activities.
Likewise, most activities that are illegal in public are also illegal
in private--such
as selling cocaine or serving alcohol to minors. Police generally need
a search warrant to
enter your home. To get a warrant they must show a judge "probable
cause"--reasonable
evidence that they are likely to find something illegal inside.
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