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?

By , J.D. · University of Utah S.J. Quinney College of Law

Let's say you've found your dream home, and want to make an offer to purchase it, but are hesitant to do so because your real estate agent says a portion of it violates a "setback" requirement. What is a setback? If you buy the house, what might happen if the violation is discovered?

Understanding Property Setbacks

The term "setback" usually refers to the distance a house or structure must be from a property line. For example, a local jurisdiction might 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.

Or, the term can 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.

What Happens If a House Violates Setback Requirements

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 (HOA).

In residential areas, one reason setbacks are enforced is to influence the character of a neighborhood. For instance, in an urban area, where not only is population density high, but residential and commercial uses are mixed and many people 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 primary use is residential and privacy is more important, the setbacks will often be larger to encourage disbursed development.

In some instances, if a house violates a setback, the property owner can legally 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, the mere fact that the house presents a possible setback violation isn't enough to assume you need to walk away from the purchase.

If a house is old enough, in some jurisdictions, it might have "grandfathered" rights. Zoning ordinances and building codes change over time. Thus, what once was lawful can subsequently become unlawful. Even if your dream house is relatively new, if a later, stricter setback was enacted, it might 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 could at that time require you to move or reconfigure the house to make it comply with the applicable setback.

Finding Out More About the House's Setback Requirements and Any Variance

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. Instead, you'll want to 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 they partially construct the house inside the applicable setback, the local municipality may grant a variance to the setback requirement to allow the house to be built.

If such a variance was, in fact, approved by your local municipality, a copy of it 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.

Consider Whether the Setback Violation Will Scare Off Future Home Buyers

As you make your purchase decision, remember that even if you buy the house and have no qualms regarding the setback, when you are ready to sell, a prospective buyer might have the same questions you are asking now and refuse to buy the house. So, if you decide to make an offer, make sure you adequately address the issue before closing on the purchase.

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