PHIL HARDWICK — Restrictions on property use come in many forms

by Phil Hardwick

Published: October 25,2013

Tags: Business, Mississippi, Mississippi State University, Stennis

PHIL HARDWICK

Phil Hardwick

The UCLA baseball team recently learned that it may not have a place to play ball, a developer in the nation’s capital is frustrated that a new building can be no more than 130 feet in height and a Mississippi homeowner discovered that he could not burn his leaves in his backyard. In each case, the issue is about restrictions on the use of real estate.

Although many people think that a property owner can do whatever he or she chooses on their own property, nothing could be further from the truth. There is no parcel of real estate in the United States that is totally unrestricted. Restrictions on real estate are generally classified as public restrictions, such as those placed by a public agency or private restrictions, which are those placed by a previous owner.

The defending national champion UCLA Bruins baseball team is currently being affected by a private restriction placed on the land where Jackie Robinson Stadium, the Bruins’ home field, is located. It seems that the land is owned by the Veterans Administration and can only be used for the benefit of disabled veterans, according to an Oct. 21, 2013, story by Luke Mashburn titled “Defending Champ UCLA Prepares to Fight Possible Eviction,” in the online website businessofcollegesports.com. A federal judge ruled in August that the original deed for the 388 acres of land must be preserved forever. In this case, there is also a few public restrictions that affect the land, i.e. those that relate to how land owned by the Veterans Administration must be used. Additionally, in 2008 Congress prohibited the agency from entering into new leases on the Los Angeles land. Thus, UCLA may be in the market for a new baseball venue if it is ruled that its lease is not valid. All because of a restriction on how the land may be used.

In Washington, D.C., controversy is brewing over a public restriction that regulates the height of buildings to 130 feet or the width of the right-of-way of the street in front of commercial buildings. That came from the Height of Buildings Act of 1910 as passed by Congress. Proponents of raising the limitation on building height say that height restrictions make rents more expensive in the nation’s capital, already a place where the cost of living is 44 percent above the national average. They also say that higher residential buildings will allow more people to live closer to work, thereby reducing traffic and air pollution. Opponents maintain that denser does not mean taller, that taller buildings have a negative effect on the quality of light and tree cover and that D.C. vistas and distinctiveness should not be destroyed. They say to take a look at Paris and its lower building height limitations to see how such a city can be beautiful.

Meanwhile, in Jackson, Miss., a homeowner is fuming over a local ordinance that bans the burning of leaves and trash inside the city limits. It is difficult for this relatively new resident of the urban area to understand why this is such an issue when there was no problem doing so on the land that he owned in a rural area. He will soon learn that his property is affected by many restrictions on use. His is an example of a public restriction on the use of real estate.

Some of the more common public restrictions on the use of real estate at the local level include zoning laws, building permit requirements, setbacks, public easements and use permits. At the state level are eminent domain laws, environmental laws/regulations and more. Even the federal laws and regulations affect the use and sale of real estate. For example, federal fair housing laws apply restrictions to all aspects of the landlord-tenant relationship. A landlord may not: advertise or make any statement that indicates a limitation or preference based on race, religion, or any other protected category; falsely deny that a rental unit is available; set more restrictive standards for selecting tenants or refuse to rent to members of certain groups; before or during the tenancy, set different terms, conditions, or privileges for rental of a dwelling unit, such as requiring larger deposits of some tenants or adopting an inconsistent policy of responding to late rent payments; or terminate a tenancy for a discriminatory reason.

Private restrictions on real estate may come in the form of deed restrictions, covenants, homeowner association bylaws and more. Deed restrictions are limitations on future use of a property by the current owner at the time of sale. For example, a seller who desires to maintain an area for wildlife and natural habitation may grant a deed containing a clause that no permanent structures may erected on the property. A subdivision developer will place covenants on all of the lots in a subdivision that restrict how the properties may be used, including minimum lot size and prohibited uses. Some of the more confining and prohibitive uses of property are from homeowner associations. For example, one Florida condominium association prohibits towels or clothing from hanging over balcony rails. Another forbids any but a certain type of curtain that is visible from the outside.

Before buying, selling or renting real estate it pays to make certain that all public and private restrictions that apply are known and understood.

 

» Phil Hardwick is coordinator of capacity development at the John C. Stennis Institute of Government. Pease contact Hardwick at phil@philhardwick.com.

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