In This Article
Types of Regulations
Easements & Rights of Way
Protective Covenants, HOAs
Water & Mineral Rights
Endangered Species & Historical Sites
See also ZONING View all articles on IS IT BUILDABLE?
Land use is governed by a wide-ranging set of regulations at the local, state, and sometimes federal level. Uses may also be restricted contractually through protective covenants and other deed restrictions. Before wasting too much time evaluating a piece of land, first make sure that you can use build on it and use the land as planned.
Land uses for buildings are typically governed by a combination of zoning ordinances, subdivision regulations, and building codes, and it is not uncommon to hit snags along the way to getting a building permit. In addition, health department regulations typically govern septic system design and approvals, and state or federal rules may preempt local regulations with respect to such things as water quality, wetlands, flood plains, endangered species, toxic materials, and other environmental issues. Moreover, a particular lot may have restrictions on the deed through easements, rights-of-way, covenants, or other encroachments. For example, if the previous owner donated the development rights to half the lot through a conservation easement in order to get a tax write-off, no one can build on that portion of the lot forever (or “in perpetuity” in lawyer-speak). What you can and cannot do on the land, such a cut trees for views, will be determined by the specific language in the easement.
A title search will determine if the seller has clear title to the property, and will identify deed restrictions, such as easements, but will tell you nothing about zoning or other issues that interfere with your building plans. The lot may be unbuildable, or unsuitable for your project, because it is too small based on zoning rules, does not have adequate road frontage or access, has no potable water on site, has contaminated soil or water, is too steep, lies in a wetlands, or cannot pass a percolation or “perc” test,” the standard test required for the installation of an on-site sewage system in most areas. It is also possible that it was subdivided without following the town’s subdivision rules, called and “illegal split.” In this case, you should probably walk away. If you already own it, you’ll need to apply for a variance, but there are no guarantees you’ll get one.
Some states, such as Massachusetts, have rules governing the minimum distance between well and septic systems on your own and abutting lots, which can be difficult or impossible to meet on small lots without a variance. Nearly all states impose restrictions on building in wetlands areas, and each uses its own definition of what constitutes a wetlands. Remember, legally defined wetlands don’t necessarily look wet, have marsh plants growing, or have other easily recognized characteristics. Check your local and state regulations to make sure your project does not violate local regulations.
The list of potential problems is long. Each section below covers issues that may render a site unsuitable for your project due either to legal issues, high development costs, or quality of life. Maybe you can legally build on a site with extensive ledge, inadequate well water, or a hog farm nearby, but do you want to? In many cases, the problems can be resolved, but this almost always takes time and money, and often carries a certain amount of risk that things will not turn out as you want (see Lessons Learned: Variance Granted – Neighbor Sues!).
Love your neighbor; yet don’t pull down your hedge. — Benjamin Franklin, in Poor Richard’s Almanack, 1732
It is not always clear where the boundaries of a lot are located. Actual roads may not be built in accordance with the roads that appear on site plans or town maps, so-called “paper roads.” In rural areas, it is not uncommon for a neighbor’s barn or septic system to be partially or completely built on the land being sold. Or neighbors may be using the land for other purposes, such as recreation, parking, gardening, or who knows what, and may not be happy that they have to give up their free (and tax-free) bounty. They may even think that they own some of the land due to some combination of ignorance, disputed boundaries, and the old saw that “possession is nine-tenths of the law.”
There is more truth to that adage than you might imagine. An ancient principle from English common law called “adverse possession,” gives a person a legal right to claim ownership of land that they have been using for a certain number of years, uncontested by the legal owner. If you find that neighbors are encroaching on your land, it’s a good idea to clearly mark your boundaries with a fence or wall as soon as possible, and if necessary, to ask the abutter to respect your boundary – and to document the communication. Under more contentious circumstances a “cease and desist” letter from a lawyer may be called for.
Conversely, with an unclear boundary, you could inadvertently build your house partially on your neighbors land – or too close to the boundary, violating setback requirements. The legal remedy for such mistakes can be severe – as in requiring the person in violation to dismantle or move the structure. In some cases, you may be able to negotiate with the neighbor to adjust the boundary. To remedy a setback violation, you can apply for a variance from the local zoning board, but there are no guarantees that it will be granted.
Boundaries may be marked by wooden or metal stakes driven into the ground at corner points. In some cases, however, these are broken, missing, buried, or have been moved. So if there are any questions regarding boundaries, a survey is in order. This is especially important on a tight lot or where you plan to build close to one of the lot boundaries – and may be required by the
An easement gives another party the right to use your land in specified ways. A right-of-way is a type of easement that allows another to travel across a portion of your land – perhaps right where you were planning to put your house or garden. For example, a utility company might possess and easement that lets them run a power line through the land you are considering. Or a previous owner may have donated a conservation easement, prohibiting any building on or alteration of a portion of the parcel you are viewing. A neighbor may have a right-of-way allowing him to build a driveway across the parcel, or the town may have a right-of-way to build a road. Similarly, a drainage easement allows the town, county, or state to create a drainage ditch or “swale” above-ground or drainage piping below-ground depending on the specific easement.
In some cases, you can put temporary structures such as decks or sheds within the easement, but would have to pay to remove and replace the improvement if the easement holder needed access. If the town or utility needs to excavate to lay piping or other utilities within their easement, they are required to restore the property to the condition in which they found it. However, it may take a few phone calls to enforce this provision, and their work may still not be up to your standards.
Easements may be part of the deed and last forever, or they may be temporary, for example, until the death of the easement holder or a specific date. If an easement is not recorded in the deed, it should be written into the plot plan, restrictive covenants, or other legal instrument. Easements can cut both ways — they may enhance the value of your land or detract from it. If an easement is important to your land purchase, for example, you need it for road access to your lot, make the easement and your planned usage of it a condition of your offer.
When buying in a subdivision, there’s a good chance that the lot comes with deed restrictions called restrictive covenants. These are intended to preserve property values, community character, and so on. You might agree with some – for example, no junk cars in the yard – but dislike others: “What do you mean I can’t hang my clothes out to dry!” These are legally referred to as CC&Rs – covenants, conditions, and restrictions and carry a lot of legal weight. So read them closely before proceeding.
Who makes the rules. The covenants and other rules restricting the use of your property are created and enforced by the developer or the Home Owner’s Association (HOA). What HOAs can and cannot regulate, and how they may enforce their rules, is governed by state law. Generally HOAs have the legal authority to:
- Develop rules for the common good of the residents
- Develop rules for common areas
- Buy goods and services to maintain common areas
- Assess owners to pay for common area costs
- Enforce their rules with such things as fines, liens, lawsuits, and even foreclosure
Who enforced the rules? Covenants are not enforced by any government body, but rather by the developer or other homeowners through a homeowner’s association. Enforcement is often uneven, but breaking a rule can lead to unpleasant consequences, including fines, liens, or lawsuits, and in extreme cases, foreclosure. Although enforcement is often uneven, it’s safe to assume that all the rules will be enforced.
What can be regulated. Covenants and HOA regulations can cover almost anything you can imagine: pets (type and number), outdoor laundry, tree cutting, house size, style, and color, fences, satellite dishes, amateur radio operation, outdoor holiday decorations, where you can park, and even who lives in your house beyond the nuclear family. The house may be subject to “design review” by one person or by a committee, who may have different tastes than you. Covenants can also be more strict that zoning laws, for example, increasing setback requirements or further limited your right to subdivide. The list goes on. Some common items include:
- Housing size, style, and color.
- Pets: type, size, number, and whether you can lets cats or dogs roam the neighborhood.
- Noise: You may not be able to blast Led Zeppelin at midnight, even if allowed by town ordinance.
- Landscaping: What you can and cannot plant
- Fencing: Is it allowed and, if so, what type and how high?
- Detached structures: size, type, and materials used for kids play structures, tool sheds, and other outbuildings.
- Decorations: Can you build and elaborate creche in your front yard or festoon your entrance with giant scary spiders on Halloween? These may be regulated.
- Home businesses: The type and size of home-based business may be restricted, or even prohibited, beyond local zoning laws.
Questions to ask. If you are considering a lot in a subdivision, make sure you go into it with your eyes open. Ask the seller, sales agent, or developer about any deed restrictions. To be certain, check with the records department or courthouse of the local municipality. Ask them for any related to deed restrictions in the development you are considering. These will generally appear on a plat map for the subdivision, or will be described in a legally recorded document at the records office.
The covenants will also show up in a title search conducted by your lawyer, if you hire one, or by the title company before they issue you title insurance. If you have any concerns, you should make your offer contingent on there being no covenants or HOA regulations that interfere with your building plans or land use (see Lessons Learned: Covenants Protecting Whom?).
A related issue is association fees covering such things as private road maintenance, or the maintenance of shared wells, community septic systems, common land, or other commonly owned property. It’s best to enter these arrangement with your eyes open.
Wetland regulations are complex and exist at the federal, state, and often local levels (city, town, or county). Possible characteristics include seasonal standing water, a low spot that holds water for several days after a rain, a shallow water table, a pond or stream with gentle banks. For a quick check, walk the site in springtime, a day or two after a heavy rain, looking for standing water or areas that are soggy underfoot. However, in some cases a designated and regulated wetlands may appear dry, may not contain marsh plants such as cattails, and may even be forested.
The Vermont Water Quality Division defines a protected wetland as
those areas of the state that are inundated by surface or ground water with a frequency sufficient to support plants and animals that depend on saturated or seasonally saturated soil conditions for growth and reproduction. These areas are commonly known as ponds, bogs, fens, marshes, wet meadows, shrub swamps, and wooded swamps. Wetlands often occur in association with lakes, ponds, rivers, and streams, creating transitional areas between dry land and open water. However, wetlands can also be isolated from any obvious connection to water when they occur where the topography collects surface water, or where ground water surfaces.
If you suspect your site might contain wetlands, talk with your local or state environmental department (DEQ), which will have wetland inventory maps identifying wetland locations. Many are now online. However, these maps are not always complete and not always up to date. They may miss some areas or include some that are no longer wetlands. The only way to determine a site’s status with certainty is to do a physical inspection of the site, including soils and plants, in accordance with state regulations. You can hire an environmental consultant to do a quick review and, if necessary, a more thorough (and more expensive) mapping of the wetland boundaries on your site. Some states provide some of these services for free or a nominal fee. Check with your state Department of Environmental Quality/Protection.
If a wetland area is known or suspected on your property, do not clear it, excavate or grade it, or alter it in any way until you fully understand the rules and have the required permits. Otherwise you could be hit with a stiff fine and be required to restore the wetlands area to its natural state.
Even with protected wetlands on your site, however, you may still be able to build on a dry portion of the land. You will need a large enough area for construction with the required clearances to the wetland boundaries. You will also need a large enough dry area for a septic system, if required.
In some cases, you may be allowed to drain and build in a wetlands area and “mitigate” the impact by restoring or creating wetlands on another part of the site — known as compensatory mitigation. However, this is legally complex and mainly used by developers with the help of engineers and lawyers.
So proceed with extreme caution before buying or building on or near wetlands. Beyond the regulatory hurdles, you face the prospect of owning a house with ongoing drainage and moisture problems.
Check your survey, local planning office, or county courthouse to see if any or all of your land lies in flood plain. Flood plains are defined by FEMA as areas with a 1% chance of flooding in any given year. That means that the likelihood of a flood in any 30-year period is about 25%. In 50-year period, the risk is about 40%. By comparison, this is 27 times greater than the chance of a fire in your house, which is about 1 in 2,500 in any given year.
Zoning may require you to build a certain distance away from the flood plain boundary and may require also require that the building be elevated to a specified height. In some areas, buildings are elevated on piers with “breakaway” walls on the lower level designed to float away in a flood and leave the building above unharmed. Special septic system requirement may also apply.
Add to that increased insurance rates, loan difficulties, and very real risk of a flood, you should think long and hard about tempting fate in this way.
Whether or not you believe in global warming, many areas of the country are getting more rain and flood hazard maps are revised over time. Read more about Flood Plain Mapping and Flood Insurance.
While being in a flood plain does not mean that your land will definitely flood, being outside of a flood plain does not guarantee that you will be safe. Local water sources such as ponds or streams, local drainage conditions, and the topography of your site all come into play. If you are in doubt, get an engineer to take a look.
Water rights. Owning a piece of land doesn’t necessarily mean that you own the rights to the water and minerals that flow across or underneath your land. This is mainly an issue in the western states, where much of the available water is used for irrigation. There may be different kinds of water rights for surface water, underground water, and springs, and for domestic, agricultural, and industrial uses. In general, water rights are based on who filed for the rights first. In a water shortage, the person who filed in 1920 has priority over a 1960 filing. Especially in arid areas, it’s important to know what water rights run with the land you are buying. This could significantly affect the value and usability of the land. Since these rights are complicated and vary from state to state, it’s wise to get the opinion of a lawyer or water rights expert.
Mineral rights. Like water rights, mineral rights vary from state to state. In general, ownership of the surface of the land does not guarantee that you own the valuable minerals underneath, which may be owned privately or by a governmental body. Mineral rights generally extend to coal, oil, gas, and valuable minerals, but exclude the basic soil, sand, gravel, and bedrock that lie under most homes. Worst of all, the owner of the mineral rights generally has the right to enter the property to extract their minerals – even putting an oil well in your backyard! If you’re in an area where oil, gas, and mining are prevalent, it’s worth investigating who owns the gold under your house. Read more on Mineral Rights vs. Surface Rights.
Other less common issues that can affect whether and how you can use a piece of land include the presence of an endangered species, an archeological site such as a Native American burial site, or special zoning restrictions imposed on environmentally sensitive site (see Special Zoning Districts).