Do I Need to Worry About Existing House Violating Setback Requirements?

Should you buy a home that you know to be in violation of legal requirements regarding its size or relation to roads or other boundaries?

Question

My wife and I found our dream home. It is a newer home, but not brand new. We want to make an offer on it, but are hesitant to do so because our real estate agent informed us that a portion of the house violates a “setback” requirement. What is a setback? If we buy the house, what might happen if the violation is discovered?

Answer

In many cases, the term “setback” refers to the distance a house or structure must be from a property line. For example, a local jurisdiction may require a house to be no closer than 20 feet from the front property line, five feet from the property lines on each side of the house, and ten feet from the rear property line.

The term can also relate to the distance a house or structure must be from a road, wetland, or other area that is considered to need protection from nearby development. Setbacks are most often enforced either by a local municipality or, if there are private covenants (also known as CC&Rs) that apply, a homeowners' association might be charged with enforcing the setback.

In residential areas, one reason setbacks are enforced is to influence the character of a neighborhood. For instance, in an urban area, where population density is high, residential and commercial uses are mixed, and people are more likely to walk as a means of transportation, setbacks will often be small to encourage dense development. On the other hand, in a suburban area, where the only use is residential and privacy is more important, the setbacks will often be larger to encourage disbursed development.

In some cases, if a house violates a setback, the property owner can be forced to move or reconfigure a portion of the house to fix the violation. In most cases, that would be an expensive fix. However, just because there is a setback violation, that doesn’t mean you need to walk away from you dream home just yet.

If a house is old enough, in some jurisdictions, it may have “grandfathered” rights. Zoning ordinances and building codes change over time. Thus, what once was lawful can subsequently become unlawful. Although your dream house is “newer”, if a new, stricter setback was enacted after it was built, it may be grandfathered in as originally built. This means the house is legal. Beware, though, if you remodel or make another improvement to the house in the future, the municipality may at that time require you move or reconfigure the house to make it comply with the applicable setback.

A local planning or building department should be able to help you research whether the house might be grandfathered in as built. However, you shouldn’t rely solely on representations made by the municipality or its employees, and should verify independently, either by hiring a land use attorney or doing your own research, that the setback violation is grandfathered.

Another possibility is that the person who built the house obtained a “variance” from the local municipality or homeowners' association. A “variance” allows development that doesn’t comply strictly with the relevant zoning ordinance or building code. For example, if a person wants to build a new house, but due to the topography of the property, can only do so if he or she partially constructs the house inside the applicable setback, the local municipality may grant a variance to the setback requirement to allow the house to be built.

In your case, if the variance was approved by your local municipality, a copy of the variance should be in the public record and obtainable through the planning or building department. If the house is part of a subdivision with a homeowners' association (HOA), you might also see if the HOA has records of any permission granted to allow the setbacks to be violated.

Given the expense associated with fixing a setback violation, it is important that you verify that the setback is either grandfathered in or otherwise permitted. And remember, even if you buy the house and have no issues regarding the setback, when you are ready to sell the house, a prospective buyer may have the same questions you are asking now and refuse to buy the house. So, if you make an offer, make sure you adequately address the issue before closing on the purchase.

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