What if the house is in an area without land use zoning?
The house in the photograph on the left was painted as a work of art by an artist who formerly lived there. She went around all four sides of the masonry-stucco building and created surrealistic views of nature. Notice the fairy princess on the left! This house would have immediately been served with a zoning violation in many cities around the United States. However, the house was in a rural area of a county that was composed of full-time farmers and forests owned by the United States Forest Service. Local folks just smiled and drove on. Oh, they do make a point of showing the house to any out-of-town guests.
Although most towns and cities in the United States have adopted zoning ordinances, some have not. Houston, Texas is the largest city without zoning, but the Houston municipal government does have land development regulations which partially replace zoning. Many counties in rural regions of the nation have not adopted zoning ordinances. Also, many residential neighborhoods in Houston have covenants attached to their deeds, which highly restrict what can occur on that property. Covenants will be discusses later in this article.
The lack of zoning ordinances is particularly common in counties composed of full-time farmers, large ranches, Native American reservations or public lands. It is not that unusual for the federal government or a Native American tribe to be the largest landowner in a rural, western county.
George, what is that awful smell coming from that farm across the road?
What creates most of conflicts in rural areas without zoning is the attempt of urbanites or suburbanites to transplant their world into the country. They are often accustomed to having neighbors with similar incomes and similar lifestyles. Suddenly, the newcomers are in a different world. The stereotypical situations are intolerance for the odors and livestock of farms, and the sudden appearance of less affluent folk as next door neighbors. If you buy a house in the country, you must expect to change your lifestyle to be compatible to others.
Quite a few lawsuits have arisen through the years when newcomers purchased a house in the late fall and then, beginning in the early spring, experienced the smells and sights of a farming operation. For farms with livestock, manure is a fact of life – tons of it. As soon as the snows melt or the last frost occurs, it is time to spread the previous year’s composted manure. To a city slicker, the odor produced when sunshine hits the spread manure makes all food intolerable. A couple of weeks after the manure, comes the spreading of lime. Massive white clouds of hydrated calcium carbonate spread across the landscape. If the wind is blowing right, the dust will blow onto neighboring properties. These sights and smells are nothing compared to the horror when suburbanites see their neighbors butchering livestock. Many a rural deputy has answered a call, where the newcomer accuses their neighbors of murdering a heifer, lamb or pig! Perhaps it never occurred to the newcomers that is what happened prior to when the chuck roast appeared in their supermarket.
The other common conflict in non-zoned areas involves the arrival of a next door neighbor who is less affluent, and perhaps less educated. Suburbanites have become accustomed to new houses in their neighborhood being of a similar style and price range to their own. They build that same type home in the country, and then are astounded when someone has the nerve to build an underground house, or pull in a mobile home right next to their chateau in the country. This may even occur when a rural area is subject to land use zoning. Agricultural zones generally put very few, if any, restrictions on housing. If you buy a house in a rural area, and particularly, if it doesn’t have land use zoning, expect to have neighbors who build houses different than yours, or who opt for living in a mobile home.
Real estate covenants
A real estate covenant is a legal clause which binds the buyer to do certain things in return for the seller receiving certain financial benefits and signing over title of the property. It is written agreement whose life is often the life of a property. If the house burns, usually the covenant is binding on whoever rebuilds the house, unless there is a clause that says otherwise. The covenant can require the buyer to do anything that is legal under the laws of the governments having jurisdiction on that property. In other words, the covenant cannot require a buyer to rob the First State Bank of Plum Nelly, Jawja, but it can require the buyer to hang an 1890 photograph of the bank’s founder over the fireplace mantle for as long as a house exists on that property.
Covenants are often used as substitutes for zoning regulations, but are almost as common in subdivision lot sales in jurisdictions that have zoning. In the latter case, the covenant adds regulations that go beyond the legal requirements of a building code or zoning ordinance. A covenant is a far more restrictive means of controlling the physical appearance of a property than land use zoning. For example, a zoning regulation combined with a land development ordinance regulation may require the purchaser of a lot to build only one house on a minimum ¾ acre lot. However, the covenants attached to a deed may require the construction of a two-story house with brick veneer that has at least 1,800 square feet of living area and a two-car garage facing away from the street. Such covenants usually also include a clause stating that if the buyer does not abide by the agreement, title to the property immediately reverts back to the seller, without any financial compensation for the buyer.
There is a slightly different type of covenant attached to a deed that may come years after a property closing. This type is usually issued by a government agency involved with historic preservation, battlefield preservation or conservation of agricultural lands. It may also be issued by such nonprofit organizations as the Association for the Preservation of Civil War Sites or the Archaeological Trust. Conservation covenants restrict the usage of a property for the common good of all citizens. Typically, a property owner agrees to maintain the property in its historical appearance or protect an archaeological site from damage or development. An agricultural conservation covenant involves the committment of the farm family to keep the farm in agricultural use.
The important legal difference between zoning regulations and covenants is that violation of a zoning regulation is an infraction or misdemeanor of criminal law, whereas violation of a covenant can only be a addressed by civil law. It is up to the seller, heirs of the seller, or agents for the seller to enforce the terms of the covenant. For example, if old Mr. Stingybottoms sold you a house with a covenant stating that you would not be able to keep cats in your house, and then he died without heirs or assignees to his business operations, there would probably be no one to carry you to court to enforce the covenant. However, a third party, such as the Michigan Cat-Haters Society, might possibly file a suit trying to force you to abide by the covenant. They may or may not be successful in court, since the society was not an injured party.
Homebuyers, especially first-time homebuyers, can get into BIG TIME legal and financial trouble when a covenant assigns responsibility for enforcement of a covenant to a third party such as a homeowners association. Such covenants generally mandate the payment of monthly dues to this association and give the association the right to approve or disapprove of any changes to your property, including paint color, additions and landscaping. They also give the homeowners association a right to file a lien against your property or even seize title of that property, if you are in arrears with association dues or defy the “design review committee” of the association.
The most serious problem with the assignment of quasi-judicial powers to a homeowners association is that such an organization is only nominally regulated by state and federal law. The local police and FBI cannot spend time monitoring the day-to-day political intrigues of all the homeowners associations in the nation. Worse still, nut cases and petty control freaks are often attracted to seek positions of power in these sorts of groups, since they are not bound to many laws that are normally applied to legitimate government agencies. Generally, if they break the rules of the organization, the only solution is spending thousands of dollars in civil court, since they have not broken any criminal laws.
Say your daughter dumps the son of the president of the homeowners association because the guy (and his father) are jerks. Many punitive acts by homeowners association leaders have been traced to such petty causes. What if people with ultra-conservative senses of esthetics get control of the design review committee? Under the covenant they can force all homeowners to paint their houses either white or gray. More common these days is the extension of national party politics at the local level. Say your family has always been stalwart members of the National Mugwump Party, and a group of idiots from the Know-Nothing Party get control of the homeowners association. They can make your life miserable, knowing that the only relief would be for you to spend thousands of dollars in a civil suit.
Always retain an attorney to review extensive covenants on a proposed sales contract. A relatively small investment now can save you a lot of money in the future. If there is any clause in a covenant that you cannot abide by, or fear that you will not be able to abide by in the future, walk away from the real estate deal. Once you sign your name to that real estate covenant and purchase that property, the stipulations of the covenant will be a part of your life as long as you live in that house.
Many other legal restrictions may affect a homeowner's use of his or her property other than building codes, land use regulations and covenants. These include road right-of-ways, utility easements, access easements, fire districts, mineral rights, water rights, historic preservation ordinances, design ordinances and airport landing zones. The others will be discussed in subsequent articles.
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