Test 3: Land Use; Legal Descriptions; Contract Law

Zoning ordinances are a primary means of keeping land use in harmony with the master plan.

The master plan fuses state and regional land use laws with local land use objectives that correspond to the municipality’s social and economic conditions. The completed plan becomes the overall guideline for creating and enforcing zones, building codes, and development requirements.

specify usage for every parcel within the zoning authority’s jurisdiction.

The intent of zoning ordinances is to specify land usage for every parcel within the jurisdiction. In some areas, state laws permit zoning ordinances to apply to areas immediately beyond the legal boundaries of the city or county.

To separate land uses so that they do not interfere with each other.

One of the primary applications of zoning power is the separation of residential properties from commercial and industrial uses. Proper design of land use in this manner preserves the aesthetics and value of neighborhoods and promotes the success of commercial enterprises through intelligently located zones. Six common types of zone are: residential; commercial; industrial; agricultural; public; and planned unit development (PUD).

The public interest

The principal forms of exceptions to a conforming use is legal nonconforming use (grandfathered in); variance based on hardship; and special exception based on the public interest.

The area of a commercial or industrial facility in relation to the size of the site.

Commercial zoning regulates intensity of usage by limiting the area of store or office per site area. Intensity regulation is further achieved by minimum parking requirements, setbacks, and building height restrictions.

It requires that multiple tracts of land be developed according to a single design.

Planned unit development zoning restricts use to development of whole tracts that are designed to use space efficiently and maximize open space. A PUD zone may be for residential, commercial, or industrial uses, or combinations thereof.

A homeowner in a residential zone converts her residence to a private school.

A legal nonconforming use can be illustrated as follows. A motel is situated in a residential area that no longer allows commercial activity. The zoning board rules that the motel may continue to operate until it is sold, destroyed or used for any other commercial purpose. An illegal nonconforming use is one that conflicts with ordinances that were in place before the use commenced. For instance, if the motel in the previous example is sold, and the new owner continues to operate the property as a motel, the motel is now an illegal, nonconforming use.

A variance is granted by the zoning board if the owner has a justifiable reason.

A nonconforming use is one that clearly differs from current zoning and is subject to change upon conveyance. A zoning variance allows a use that differs from the applicable ordinance for a variety of justifiable reasons.

certificate of occupancy.

Building inspectors inspect a new development or improvement for code compliance. If the work complies, the municipality or county issues a certificate of occupancy which officially clears the property for occupation and use.

It conveys legal title to the acquiring entity.

Eminent domain allows a government entity to purchase a fee, leasehold, or easement interest in privately owned real property for the public good, regardless of the owner’s desire to sell or otherwise transfer any interest. In exchange for the interest, the government pays the owner a ‘just’ compensation. To acquire a property, the public entity initiates a condemnation suit. Transfer of title extinguishes all existing leases, liens, and other encumbrances on the property.

parties responsible for improper disposal of hazardous waste could be charged for the cleanup costs.

Under CERCLA and the Superfund Amendment of 1986, current landowners as well as previous owners of a property may be held liable for environmental violations, even if ‘innocent’ of a violation. Sellers often carry the greatest exposure, and real estate licensees may be held liable for improper disclosure.

Individual property rights and the public’s interest.

The optimum management of real property usage must take into account both the interests of the individual and the interests of the surrounding community. While maintaining the value of an individual estate is important, the owner of an estate must realize that unregulated use and development can jeopardize the value not only of the owner’s estate but of neighboring properties.

police power.

At the local level, county and city governments control land use through the authority known as police power. The most common expressions of police power are county and municipal zoning.

The owner must sell the property in exchange for market-value compensation.

Eminent domain allows a government entity to purchase a fee, leasehold, or easement interest in privately owned real property for the public good, regardless of the owner’s desire to sell or otherwise transfer any interest. In exchange for the interest, the government pays the owner a ‘just’ compensation.

reasonably promote community health, safety and welfare.

Local planners do not have unlimited authority to do whatever they want. Their zoning ordinances must be clear in import, apply to all parties equally, and promote health, safety, and welfare of the community in a reasonable manner.

To ensure that improvements comply with codes.

Local governments enforce zoning ordinances by issuing building permits to those who want to improve, repair, or refurbish a property. To receive a permit, the project must comply with all relevant ordinances and codes.

To regulate the density of dwellings in the residential zone.

Residential zoning regulates density, by limiting the number and size of dwelling units and lots in an area.

a special exception.

A special exception grant authorizes a use that is not consistent with the zoning ordinance in a literal sense, yet is clearly beneficial or essential to the public welfare and does not materially impair other uses in the zone.

a legal nonconforming use.

An illegal nonconforming use is one that conflicts with ordinances that were in place before the use commenced. For instance, if a motel that was allowed as a legal nonconforming use is sold, and the new owner continues to operate the property as a motel, the motel is now an illegal, nonconforming use.

a plat of subdivision.

In addition to complying with zoning ordinances, a developer of multiple properties in a subdivision must meet requirements for subdivisions, including submission of a plat of subdivision.

accurately identifies the boundaries of the property as distinct from all other properties.

A legal description of real property is one which accurately locates and identifies the boundaries of the subject parcel to a degree acceptable by courts of law in the state where the property is located. The general criterion for a legal description is that it alone provides sufficient data for a surveyor to locate the parcel. A legal description identifies the property as unique and distinct from all other properties.

reference points, angles, and distances.

A metes and bounds description identifies the boundaries of a parcel of real estate using reference points, distances, and angles. The description always identifies an enclosed area by starting at an origination point, called point of beginning, or POB, and returning to the POB at the end of the description.

two consecutive common meridians.

The ‘vertical’ area between consecutive meridians is called a range. A range is identified by its relationship to the principal meridian. All ranges are six miles wide.

two consecutive parallels.

The ‘horizontal’ area between two parallels is called a tier, or a township strip. A tier is identified by its relationship to the base parallel. All tiers are six miles wide

Six miles by six miles, or 6 miles square.

A township is the area enclosed by the intersection of two consecutive meridians and two consecutive parallels. Since the parallels and meridians are six miles apart, a township is a square with six miles on each side. Its area is therefore 36 square miles. Remember to differentiate square miles from miles square: 4 square miles is a measure of area (2 miles x 2 miles); 4 miles square is a representation of the sides of a square (4 miles by 4 miles).

1/64.

The size in acres of a subsection of a township is a fraction of 640 acres, since there are 640 acres in a section. Thus ten acres is 10/640, or 1/64th of a section.

properties in a subdivision.

The recorded plat method, also called the lot and block system, is used to describe properties in residential, commercial, and industrial subdivisions. Under this system, tracts of land are subdivided into lots. The entire group of lots comprises the subdivision. In a large subdivision, lots may be grouped together into blocks for ease of reference.

Metes and bounds.

A metes and bounds description identifies the point of beginning and describes the distance and direction from that point to the first monument, and thence to subsequent monuments and back to the beginning to define the property’s enclosed perimeter.

Thirty-six.

The rectangular survey system divides a township into thirty-six sections.

640.

Each side of a section is one mile in length. Thus the area of a section is one square mile, or 640 acres.

something of value traded in exchange for something of value.

A contract must contain a two-way exchange of valuable consideration as compensation for performance by the other party. The contract is not valid or enforceable if just one party provides consideration. Valuable consideration may be something of tangible value, such as money, or something the party promises to do. It may also be something intangible that a party must give up.

contain a legal description of the property.

In addition to satisfying the requirements of a valid contract in general, a contract that conveys an interest in real estate must be in writing, contain a legal description of the property, and be signed by one or more of the parties.

A reasonable time, or until the expiration date on the offer.

If an offer contains an expiration date and the phrase ‘time is of the essence,’ the offer expires at exactly the time specified. In the absence of a stated time period, the offeree has a ‘reasonable’ time to accept an offer.

The buyer’s death terminated the offer.

Any of the following actions or circumstances can terminate an offer: acceptance; rejection; revocation; lapse of time; counteroffer; or death or insanity of either party.

A contract for the sale of undeveloped land.

A real estate contract that is not a personal contract for services can be assigned to another party unless the terms of the agreement specifically prohibit assignment. Listing agreements, for example, are not assignable, since they are personal service agreements between agent and principal. Sales contracts, however, are assignable, because they involve the purchase of real property rather than a personal service.

the parties act is if there is a contract.

An implied contract is an unstated or unintentional agreement that may be deemed to exist when the actions of any of the parties suggest the existence of an agreement.

A sale contract before closing.

An executory contract is one in which performance is yet to be completed. A sales contract prior to closing is executory: while the parties have agreed to buy and sell, the buyer has yet to pay the seller and the seller has yet to deed the property to the buyer.

both parties promise to do something in exchange for the other party’s performance.

A bilateral contract is one in which both parties promise to perform their respective parts of an agreement in exchange for performance by the other party. An example of a bilateral contract is an exclusive listing: the broker promises to exercise due diligence in the efforts to sell a property, and the seller promises to compensate the broker when and if the property sells.

The broker may have a claim for marketing expenses expended during the listing term.

The damaged party may elect the following legal remedies: rescission; forfeiture; suit for damages; or suit for specific performance. However, the broker must show that the seller has breached the contract.

the failure of a party to perform according to the terms of the contract.

A breach of contract is a failure to perform according to the terms of the agreement.

The act of declaring that a contract is no longer in effect for a given party.

Parties to a contract may rescind a contract by mutual consent, or a damaged party may rescind the contract unilaterally. This act of rescission cancels the contract and returns the parties to their pre-contract condition, including the refunding of any monies already transferred.

reflect a mutual understanding or agreement.

Mutual consent, also known as offer and acceptance and meeting of the minds, requires that a contract involve a clear and definite offer and an intentional, unqualified acceptance of the offer.

unenforceable.

A valid contract that is in writing is enforceable within a statutory time period. A valid contract that is made orally is also generally enforceable within a statutory period, with the exception that some contracts are enforceable only if they are in writing. These laws apply in particular to the transfer of interests in real estate. A void or voidable contract was not a truly valid contract.

is possibly valid and enforceable.

Incompetent parties, or parties of ‘unsound mind,’ may not enter into enforceable contracts. However, during the period of one’s incompetency, a court may appoint a guardian who may act on the incompetent party’s behalf with court approval.

a counteroffer.

By changing any of the terms of an offer, the offeree creates a counteroffer, and the original offer is void. At this point, the offeree becomes the offeror, and the new offeree gains the right of acceptance. If accepted, the counteroffer becomes a valid contract provided all other requirements are met.

valuable consideration.

Valuable consideration can be something of tangible value, such as money, or something a party promises to do or not do. For example, a home builder may promise to build a house for a party as consideration for receiving money from the home buyer.

is void.

The content, promise, or intent of a contract must be lawful. A contract that proposes an illegal act is void.

must act within a statutory period.

The statute of limitations restricts the time period for which an injured party in a contract has the right to rescind or disaffirm the contract. A party to a voidable contract must act within the statutory period.

require certain conveyance-related contracts to be in writing.

The statute of frauds requires that certain contracts must be in writing to be enforceable. Real estate contracts that convey an interest in real property fall in this category, with the exception that a lease of one year’s duration or less may be oral.

HOA’s must use caution in developing restrictions for a new subdivision’s land use regulations. In
particular no restriction may be discriminatory — such as an improper resident age requirement — nor can
the restriction violate fair trade laws.

The buyer has no obligations to the seller whatsoever.

The mutual consent required for a valid contract is reached through the process of offer and acceptance. If the offeree accepts all terms without amendment, the offer becomes a contract. The exact point at which the offer becomes a contract is when the offeree gives the offeror notice of the acceptance. If an offer contains an expiration date and the phrase ‘time is of the essence,’ the offer expires at exactly the time specified.