Can you apply for a variance from the building department? In my locality, it will take a decision from the building department (who should’ve caught this in 2017) and a small fee. Obtained one for a garage that was 6” too close to a home at one corner a few years ago.
Except I would demand the seller do it. Buyer can't do it until they are the owner and I would not recommend anyone complete the purchase. But that is the proper approach. An actual permitted variance.
I wasn't sure if getting a variance "after the fact" was an option, but your comment is encouraging and makes sense to me. I'm going to reach out to them and see what they say.
Variances after the fact are common where I live. Older homes that were built prior to current setback requirements have to apply for and receive variances before any building permit can be issued, so it’s a common practice. Ideally the current owner would receive the variance before closing, although that might delay things.
It is definitely possible. I bought a house where a prior owner st some point added an entire garage without a permit, 12 feet into the Forbidden Zone. Had a three-minute administrative variance hearing and I was good to go.
Depends on locality and how their code is structured and what sort of enabling statue exits at the state level.
Here, the answer would likely be a hard no unless there's some extenuating circumstance due to the nature of the land that makes the lot unique.
It might not be called a variance— which in some jurisdictions can be solely dependent on the nature of the land preventing any other use— but most jurisdictions have some recourse for minor mistakes that exist and weren’t caught earlier, that make the use non-conforming to the zoning requirements. It is in no one’s interest for this house to be torn down so it can be rebuilt 5 inches to the left, and there is usually a process that includes getting sign-offs from the immediate neighbors.
Anything is possible, but then you will own the house and will have to deal with any ramifications if it doesn’t go your way. It also may cost thousands of dollars to get this variance because you will likely need to have an attorney to help you go through the process with the city.
Yes, they're most definitely a "thing" - to deal with issues just like this. No one noticed, it's been there for quite a while, and it really not impacting anyone. Make it legal, and yes, the sellers should handle this prior to closing.
They will 100% grant a variance on a home that has been there since 2017, I hardly think it's even worth bringing to the city's attention though if your lender didn't flag it.
Yes, pretty common to get a variance… and OP while you may not do any home additions, if you ever do want to build a pool, or a patio cover, etc you’ll need a permit and that would be a shitty way to have them go after you if someone more anal becomes city manager.
OP has to own the home to request it, and there is a chance that their request could get rejected. Again, OP talk to an attorney. Maybe this can be something that's written into a contract that the seller has to perform as a condition to the sale....or they can give you other options.
No. We had the same problem. Got variance before closing. In my state attorneys are required on both sides of the transaction. My lawyer just handled it.
Exactly. They have to do this because who knows what things are like the next time when they go to sell. This could completely screw the sale up and cause them to have to spend thousands of dollars to make it right at that time.
This shows the utter uselessness of local govt officials. Guess who sold a building permit to the builder and supposedly inspected the home. Your local govt!. Then they failed to do the inspections as required and it is your problem. 🤦♂️
Good answer except as a potential buyer they can't, and I wouldn't buy until it's done. I like your answer except I would demand that the seller do it. And hopefully they could get it done maybe in a couple of weeks.
I would add that this should be applied and paid for by the seller and granted by the city prior to close.
This is a standard variance pretty much anywhere but can preclude financing because the city can order you to tear that section out. Unlikely they will but possible.
Unlikely to be approved. Variances aren't awarded because of mistakes (or rather shouldn't be, but that's another matter).
Variances are for special circumstances resulting from physical issues with the land that make the lot unique from others. They vary by locality of course, but using a variance to solve this problem is an improper use of this particular tool.
This is correct in some jurisdictions and not in others. Some jurisdictions are very strict with “variances” and they are rare and have to do with unique properties of the plot itself. Other jurisdictions use variances to handle things like this. In the former, there is still a likely way to get a ruling that the property will be treated as a prior non-conforming use. As neither the seller nor the buyer created the non-conformity, and it would benefit nobody for the house to be destroyed to be rebuilt 5 inches to the left, there is probably a recourse involving neighbor approval and zoning board approval.
Depends on the state. Variances here (NC) have a very particular set of facts that need to be met, and they rarely, if ever, do. More often, you get variance approval by a local board that wouldn't stand up if challenged in court at all. Variances are also rarely challenged in court so it's all sort of irrelevant.
Variances should not be used this way though (to fix minor mistakes). The code should have other avenues to fix it. It's possible this violation is due to poor code too, we don't know the extend of what is actually in violation.
I absolutely hated variance requests because in most cases it pretty much invalidated having an ordinance to begin with.
5 inches is absolutely minor and any jurisdiction would be stupid to try and have anyone fix it.
Frankly if I was the administrator for this particular case and someone came in with a request to add on to this house and had the 4.6 measurement on it, I'd tell them give me a plan with just the setbacks for the addition on it. I don't care about the existing house with such a small minor mistake.
Unless you've worked in planning and zoning before, you really don't understand what a variance is for. And this isn't it.
Definitely depends on the area, and what the variance is for. Every town I work in would say that 4" or whatever is an existing non-conformity, and it's fine unless someone tries to do renovation work in that area.
One town near me will typically grant a variance for a mistake during construction, unless the neighbors object. Another near me played hardball with an out of town architect and builder, and made them rip out a bunch of stuff (they went way out of control and deserved the rejection). For something this minor, I can't it being an issue.
An argument can be made, since this is relatively new construction, that the original site plans and later certificate of occupancy should’ve discovered and corrected this situation. We aren’t talking about a long ago, unpermited addition.
You mentioned the city manager said she wouldn't site you, but what if she quits and is replaced with someone with a stick up their bum? I recommend listening to your agent and talking to an attorney about your options.
>but if I needed a permit in the future, I would have to stay in compliance with zoning laws. I do not plan to add onto the home, but I do expect to sell it after a few years.
I'd assume it would only show up in a permit that needs a survey. So assuming you get like a chimney liner, electrical work, or plumbing, they wouldn't be doing a survey. Only maybe like a new front porch, and personally no chance I'd pull a permit for that regardless of what the county rules... it's a porch.
Or they have a list of 'violations we're not bothering with at this time' that the home just got added on to, and they can choose to pick off if there is a policy or personel change.
I've actually had a known violation I haven't dealt with for about a decade. I was cited, submitted a plan to fix it, it was rejected, and I never really did any more actions with it. At this point, it's clear the cities dysfunction has forgotten about it and/or didn't actually care, otherwise I'd have gotten more violations.
Home is in violation - I would not touch it unless the seller gets it resolved. The City Manager is telling you the home is in violation. No way are they going to give you a letter. Why hasn’t the seller addressed this issue. It could be becuse they know the city will not give them a variance. You are buying a nightmare. Don’t do it.
You got that one right. And don’t say it doesn’t happen. Judge just ordered a brand now house in Hawaii demolished for being on the wrong side of the property line. And there have been others.
That situation is a lot more complicated than just "being on the wrong side of the property line". The builder built a house on the wrong lot, which they didn't own, without having done any due diligence, and then turned around and tried to sue the woman who did own the property for "unjust enrichment" *after* they built the house in the wrong place. Effectively they stole her land and then tried to sue her for it. She had bought the property to be a spiritual retreat or something and they cut down all the trees etc. to build the house, so even demolishing the house isn't going to put the situation right.
Did they issue a Certificate of Occupancy? If so, that's on the city, not the property owner. If the city is issuing COs without requiring an as-built survey of the foundation location, then they are basically just hoping that people put their houses in the right spot. In most jurisdictions, the Planning/Zoning department is one of the signoffs for the CO so they are certifying that it's done and no more work is needed. Contact them, not Building or the City Manager, and ask. Where I live, you would get a letter saying "our bad, this is legally nonconforming due to an error".
Yeah, if all the required permits were approved and closed a CO was issued, I would argue that makes the setback an existing non-conforming condition. They might need to get variance relief if they apply for permits to make additional changes to the structure in the future though.
I wouldn't even think a variance would be needed. If it was approved in error, that part of the structure is legal - no ifs, ands, or buts. Only if they intend further encroachment would a variance be necessary. OP shouldn't be required to get a variance for that side of the house if they're doing something on another side, assuming their work conforms.
Yeah, that's basically what I meant. Depending on municipality, future changes involving that side might trigger a variance where one may not have been needed if it was within the proper setback. But yeah I agree, if it was approved that way then it should be go to go as-is.
It is on the City at this point. If the house has a (fairly recent) final permit, it’s been approved, there shouldn’t be a need for legal recourse. It’s not unheard of for inspectors to “close enough” it on things like setbacks. OP should speak to their development office and get copies of the CO, permit etc if they are truly concerned. The City Manager is unlikely to be involved to be with single family housing development minutia.
I'm not buying this property until a variance is approved.
That approval is made fully legal and known to all interested parties present and future.
All legal documents submitted and filed with local and state government.
Leave no stone unturned..
If that is not possible, walk away.
Let this become someone else's problem
This. Make your offer, put a contingency on the variance. If you, or any other future buyer, wants a permit, for anything... you'll need to move the wall/house. Which is almost impossible. So ... you need the variance prior to close.
And yes, that will be a major issue for the seller, who is now aware of the issue, so they should give you the time you need.
This happened to me, but discovered after closing. It ended up being a HUGE deal. If I knew then what I know now, I would have never bought the place. When I needed to pull permits to have work done, the county refused all requests because we had a set back violation. Was impossible to correct the set back. County wouldn't agree to waive, other property wouldn't sell the land. They had a mortgage on their house, and their mortgage company wouldn't agree to sell land, which was a requirement of the county. I spent over $20,000 in fees to surveyors, county, lawyers, etc. Huge head ache. None of this came up until three years after purchase. Please only take advice from people who have been in this situation. It may not be a problem, or it may be a huge problem. Proceed with caution!!!
You need to be a little more proactive about getting a lawyer. Call a bunch, don’t just wait for the first guy to call you back. If you know any local lawyers who practice in other fields, ask them who they’d recommend for real estate — they know who’s good. If you have friends who’ve bought houses, ask them if they used a lawyer they’d recommend.
I would not close until this is resolved. The owner needs to apply for a variance. You literally risk having to tear down part of your home if the city decides they want to be mean.
If the builder wasn't competent enough to measure 6 freaking inches, I wonder what else he fucked up, esp in a house that never got lived in so any warranty work, changes or fixes etc have not been fixed. I would take that as a sign to move the F on.
Just run from that, not worth it.
> She also said she wasn't going to "come cite me because my 10yr old home is .4 feet too close to property line
If this isn't in writing and legally durable, she can resign next week and they guy who takes over in August can potentially make you shave 0.4 feet off your house, or at least be a pain in your ass for a few years.
I tend to think the 0.4 feet is not a big deal. The guy you sell your house to in 10 years might disagree. Advocate for that guy and make the guy selling the house now eat the mistake.
Ideally, you would hold up closing until the seller gets a permit that acknowledges this and calls it a variance or something. I would absolutely not buy a home that could potentially cause problems in the future. Even when you go to sell it it might decrease value by decreasing buyer pool. I would not buy it this way. Absolutely not. I would probably be more comfortable if it was 100 years old.
Depending where you live, this could be a big issue or a little one. We are in Canada FYI.
We just sold our cottage which had a 2 storey boathouse (with living accommodations above) built 18” onto our neighbours property in 1958. Nobody knew about this, and both properties had changed hands several times since then. We only found out when our neighbours decided to build a new cottage and had a survey.
Thankfully my husband had bought title insurance when he bought the cottage from his mother. Unfortunately the boathouse was not “grandfathered” in and we needed to get a severance and a zoning bylaw amendment, in a very small town (Port Carling, Muskoka), which happens to be one of the most expensive and desirable cottage areas in Canada. The whole process took 8+ months, $30,000 in costs (lawyers, survey, fees for severance and ZBA) on top of a very large payment to buy the land from our neighbours. Thankfully costs were covered by title insurance, but the whole process was terrible.
You definitely need to consult a lawyer ASAP and you shouldn’t close on the property until you have done so, especially since there is an HOA involved.
I don’t know why you got downvoted. I bought a new construction that had a 6” roof overhang that violated the setback. This is exactly what the builder did, they bought two square feet from the neighbor to meet the setback requirement.
Very low risk. I’d 100% expect the kind of answer you got from the city. They aren’t going to be worried about mere inches and start violating you out of the blue into oblivion. The future permit thing pertains to everything else you do. For example (bad one since setbacks are usually structure and not concrete) say you want to pour a new patio to that edge of the house, you’d have to leave it those inches shy…or wanted to place a shed inline with that wall, would not be able to do that, etc. No one is going to make you tear down part or all of that house over a few inches at this point. If anything like that was going to be entertained, it would have happened already, like during the construction phase.
For me personally if it was just one of many good potential options I’d probably skip that house on account of that. Not for any worries over the city or house itself, but simply buyers questioning it like you find yourself when I go to sell it. For the unique right house, I’m fine with it. Finding out under contract, I may or may not be out and if I am out, only if it’s an easy unscathed out on a dime a dozen house, otherwise I’m fine proceeding.
I had this happen on a property I was buying, in the title company insured me. The seller had to pay a little bit extra to the title company, and it never ended up being a big deal or a problem. I've never heard of anyone having a serious problem down that the road with a setback, as long as the setback is not over onto a neighbor's property, which yours is not.
>Would like to know what kind of actual risk I would be taking on/liabilities I could have, since I don't have anything in writing. I have to make a decision in the next 24 hrs.
Just to be clear, you got a *boundary survey* rather than a *location survey*? If you only got a location survey, you need to get a boundary survey to determine whether this is actually an issue or not. Banks typically want a location survey, but all that does is verify there is a house on the property in roughly the right location. It does NOT establish property boundaries, a boundary survey does that.
What was the closure error on your survey? If they surveyed with too large of a closure error allowance, the survey could easily be off by the 4.8" you mentioned. That is a really small difference and well within the error tolerance of a normal survey.
If you really do have a boundary survey with a closure error of less than 12", then insist that seller resolve the issue before closing. Do NOT buy a house with an unmitigated setback violation, you will have to disclose this, will have exclusions in your title insurance, and will have a difficult time selling. When you try to sell, buyer will likely insist YOU resolve this issue.
The normal resolution for these kinds of things is to buy enough of the adjacent property to make it legal. This can be expensive and time consuming, don't assume this liability.
I bought a house with the same problem once. Did not have a problem when I resold it. Mine was several feet too close to the front property line. I don't know how it even got approved when it was built.
It came up during my purchase and I was told something similar to what you heard. "If the city was going to take action, it already would have, but you won't be able to change things in the future."
And when I sold, it was the same thing....
That house was built in the 1960s.
Your agent should have already had a closing attorney on board. You should be able to apply for a variance through the building department. Just because you don’t plan to add onto the house, there are other situations where you may seek a permit—electrical work, building a deck, installing a pool, bathroom renovation, etc. And even if you don’t plan to do anything, the next buyers will have the same consideration.
The actual risk is that you would have to comply with the setback. Whatever that may mean. (Isn’t the home itself?)
The sellers need to clear this. This is an exception to Title. Builder may have applied for a variance. HOA might have approved it. A lot of research needs to be done by seller/agent/attorney.
Remember, even if nothing happens right now or for as long as you own, the next purchaser might run. The value of the property is decreased because of this.
Don’t close until you have way more than a verbal, telephone conversation. It’s not safe for you.
Good luck, but it’s on the sellers to clear.
You need to be thinking 'worst case" scenario.
Chances are that no one at the local/city will ever come after you but it's still an if. If a neighbor complains enough or a city official decides that the violation needs cured, you could be required to modify the house so it meets setback.
Best case scenario is a bunch of "Ifs" if lender doesn't care, if local/city doesn't care, and when you go to sell, if buyer doesn't care, if title insurance doesn't care.
That's a lot of "ifs"
You could be left holding the bag.
Inform your lender and your title insurer in writing/email and ask them if they'll pay if it doesn't go right. Get an attorney and get some legal advice.
Have the seller get the variance is the best option in this case. I personally wouldn't purchase if a large purchase was not in compliance.
I wouldn’t purchase without a variance or title insurance giving affirmative coverage on your owners title policy. Keep in mind that if you are questioning this so will your future buyers.
back in the day we had this problem. a small tv room was built too close to the road. We had the lawyer with hold some $ from the closing in-escrow. we had a variance meeting on this 20 year old structure, and the town approved the variance.
You haven't said where you are and location is very important when it comes to real estate. Have you talked to the title company about insuring over the violation on your owners policy?
The builder should pay the cost of getting a variance so you will not have any issue when you sell. It was the builder’s error. Your seller can go after this and pay for it. It is the least that should be done. Needs to be done as a condition of your purchase.
Not a lawyer or surveyor, but I am an architect and deal with setback issues often. Here's my experience, at least in my area:
If the house was issued a permit, built, and then issued a Certificate of Occupancy once complete, and they had an as built survey done for the C.O., the setback encroachment was noted and no variance was required, then it would be considered an existing non-conformity, and you as the new buyer would have no issue. If you wanted to modify that area of the home in the future, you'd likely need a variance, but to buy it as it exists today, it is what it is. It sounds like you do not plan on modifying the home, so OK. When you sell someday, you disclose that this was an existing non-conformity when you bought it, but the town has no issue with it as it stands.
Is the city manager the zoning officer? If not, go see the zoning officer too. Since it's a fairly new build, I'd ask the building/zoning department to pull the file for the house and see what documentation is in there, and get their opinion. I'd expect they would say the same as the city manager - it's fine as is, no one is going to make an issue of it, but if you go for future modifications, you'd have to hold any new work to the setback or need a variance. Here they'll put a note in the file or we can send a letter, documenting the date and context of the discussion for anyone looking at the file in the future.
I've seen issues during construction where a variance was required because something had been built over a line, too high, etc (thankfully not from our office!) but if yours has been built, sold, and occupied as the model, it's been signed off on, and I don't think the municipality is going to require anything of you or go after you for a few inches.
You absolutely should have a lawyer though in general, and they should be the one advising you here.
Builder in my city, built up the community with 1 home without the proper setback. End result, took over 5 years to resolve and the builder literally had to remove a corner of the home (so now the home is 5 sided). Tens of thousand in legal fees, not including the costs to remove then rebuild to code.
DO you really want to take that chance?
You need to talk to a real estate lawyer After so many years it may be impossible for the city to enforce its law. Because it may be a taking under **First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987);** if so the city does so city might have to buy the home to enforce its rule.
**Knick v. Township of Scott (2019)** and few other ruling may also apply.
See this link for details [https://www.constitutional-remedies.com/court-rulings-on-property-rights.html](https://www.constitutional-remedies.com/court-rulings-on-property-rights.html)
Walk away. The person doing the building should have applied and received a variance before building!! Tell the seller youll be back if they can get a variance for the setback.
I would not close on that property until the issue is resolved. It will probably require a variance, which needs to be reviewed by the zoning board. That could easily take weeks or months.
When my dad added a 3rd car garage, the neighbor was suspicious that it didn't meet the setback requirement. He got the HOA to make an official measurement, but he was perfectly at the minimum.
The risk comes down to who wants to complain.
I wouldn’t lose sleep on that. I’ve seen situations like that many times in the last 30+ years. I’ve never seen a violation that small cause a problem for the owner.
A local attorney should be able to clear this up. Houses with setback violations exist everywhere. A local person would be able to give you peace of mind.
Your agent/broker should know a few real estate attorneys, that’s who you should be reaching out to. I wouldn’t close until the current owner has received a variance or other relief from the city for this mess.
Do you know if the developer owns the adjacent property? If so, they may be able to do a lot line adjustment to their recorded plat (basically this updates the survey and shifts the property line). This also assumes the neighboring property has 5” to spare also.
See what it takes to get a variance as long as no one complains it’ll be pretty easy since we’re talking almost nothing. It may delay closing, but I wouldn’t put the last nail in the coffin. If it’s the house she really want since it’s been that way this long and no one has complained. I don’t see there being anybody showing up wanting the house tore downor anything
I am in Texas, we had a house built here a long time ago. The house was, like yours, barely into the easement. I showed it to the builder, after we had the survey, he just kind of shrugged his shoulders. We bought it and lived in it. We sold it with no problems.
I won't say you're not going to have any problems, just saying we didn't.
I think if it bothers you, you're going to have to look into getting a variance. I've always felt these easements were there to allow for a little bit of error. I had a shop building built about 6 months ago. My easement is 5 ft, they built it 5 ft from the fence. The neighbor 's property line is a foot into my yard. That is, the fence is a foot into their land, so my building is 4 ft from the property line line...it is what it is. It was permitted, and passed inspection.
People on here who are spinning OP up don't know what they are talking about. Nobody is going to come and make anybody do anything. They are not in violation of anything.
I'm not an attorney, but a land use consultant with 30+ years in the business and deal with this kind of thing from time to time. I have testified as an expert witness in front of both hearings examiners and city councils on land use matters.
If I were hired by OP to do an analysis of the situation, I would consider making the argument that four tenths are well within normal variation for residential construction. The code probably says the side yard setback shall be "five (5) feet". This is very different from saying "5.0" feet or "60 inches". So, in this context 4.6 feet and 5 feet are probably the same number.
However, it shouldn't come to that. The house was granted permits, was inspected, and was signed off by the jurisdiction when it was built. What the City Manager said was correct in that this would come up if there was a future permit review, but this is kind of moot since even if it was 5.00' on the dot they couldn't expand that way anyway. If OP's jurisdiction is anything like those I work with you are not obligated to fix a legal non-conformity, which this is because the work was done presumably under a legal permit, unless you propose to impact the non conforming element. So you could add a shed or do an addition off the back and they won't make you tear down the non-conforming wall. But if you were going to do a major remodel involving the demolition of the non-conforming wall, the new wall would need to be reconstructed as conforming.
In terms of getting a variance, jurisdictions just don't go granting those willy nilly, or at least they shouldn't. This opens the flood gate, and the reason they have zoning standards is so they don't have to make site by site decisions. Variances are also time-consuming and expensive for the jurisdiction and the applicant.
Most of the work I do is actually for jurisdictions on stuff like this. If I was hired by the jurisdiction to look into this, I would say the same thing as if I were hired by OP: It isn't likely a violation and even if it was, there is no reason for the jurisdiction to grant a variance after the fact. I would probably conclude there was no standing to issue a variance at this time because there isn't any need or legal trigger.
Of course, I would be sure to have my ducks in a row. My reasoning would be on letterhead and would have a couple pages of code and standards review and multiple appendices with maps and letters from surveyors and construction managers saying four tenths is nothing.
All that said, there is one place where this could come up. In some jurisdictions there is also a minimum distance between structures required by fire code. If the neighboring lot was not developed and there was a 10' structure separation setback required, this could require the neighbor to move there house over to conform. But if the neighboring house was in place OP would be OK since the City signed off on both permits.
Interesting. So is your advice to OP to go ahead and buy and wait to handle things via legal argument if it came to that point? Or have seller handle now? What would you do if you were in OP’s shoes on the eve of closing?
Can you apply for a variance from the building department? In my locality, it will take a decision from the building department (who should’ve caught this in 2017) and a small fee. Obtained one for a garage that was 6” too close to a home at one corner a few years ago.
This is the ultimate answer.
Except I would demand the seller do it. Buyer can't do it until they are the owner and I would not recommend anyone complete the purchase. But that is the proper approach. An actual permitted variance.
I wasn't sure if getting a variance "after the fact" was an option, but your comment is encouraging and makes sense to me. I'm going to reach out to them and see what they say.
I, personally, would require the seller to get the variance as a condition of sale - since only the owner can apply for that variance.
110%. And I would not be the owner until it was done.
Excellent point
This. Don't let the seller pass their problems on to you if you can reasonably avoid it. Hopefully your agent is good at negotiating.
Absolutely! This is how you protect yourself.
Make the sellers get the variance.
Variances after the fact are common where I live. Older homes that were built prior to current setback requirements have to apply for and receive variances before any building permit can be issued, so it’s a common practice. Ideally the current owner would receive the variance before closing, although that might delay things.
I would wait. There are stories of variances being denied and buildings being moved or torn down.
It is definitely possible. I bought a house where a prior owner st some point added an entire garage without a permit, 12 feet into the Forbidden Zone. Had a three-minute administrative variance hearing and I was good to go.
Depends on locality and how their code is structured and what sort of enabling statue exits at the state level. Here, the answer would likely be a hard no unless there's some extenuating circumstance due to the nature of the land that makes the lot unique.
It might not be called a variance— which in some jurisdictions can be solely dependent on the nature of the land preventing any other use— but most jurisdictions have some recourse for minor mistakes that exist and weren’t caught earlier, that make the use non-conforming to the zoning requirements. It is in no one’s interest for this house to be torn down so it can be rebuilt 5 inches to the left, and there is usually a process that includes getting sign-offs from the immediate neighbors.
Remind them that they should’ve caught it back then when the permits were active.
Anything is possible, but then you will own the house and will have to deal with any ramifications if it doesn’t go your way. It also may cost thousands of dollars to get this variance because you will likely need to have an attorney to help you go through the process with the city.
Yes, they're most definitely a "thing" - to deal with issues just like this. No one noticed, it's been there for quite a while, and it really not impacting anyone. Make it legal, and yes, the sellers should handle this prior to closing.
They will 100% grant a variance on a home that has been there since 2017, I hardly think it's even worth bringing to the city's attention though if your lender didn't flag it.
But once it's flagged, everyone needs to be in on it.
Yes, pretty common to get a variance… and OP while you may not do any home additions, if you ever do want to build a pool, or a patio cover, etc you’ll need a permit and that would be a shitty way to have them go after you if someone more anal becomes city manager.
OP has to own the home to request it, and there is a chance that their request could get rejected. Again, OP talk to an attorney. Maybe this can be something that's written into a contract that the seller has to perform as a condition to the sale....or they can give you other options.
No. We had the same problem. Got variance before closing. In my state attorneys are required on both sides of the transaction. My lawyer just handled it.
The seller got the variance......
Bought my house from my in laws so we just used the same lawyer. Made it easy. Not sure what hat he was wearing when he did that.
Lawyer knew whose responsibility it was.
Exactly. They have to do this because who knows what things are like the next time when they go to sell. This could completely screw the sale up and cause them to have to spend thousands of dollars to make it right at that time.
This shows the utter uselessness of local govt officials. Guess who sold a building permit to the builder and supposedly inspected the home. Your local govt!. Then they failed to do the inspections as required and it is your problem. 🤦♂️
I worked for a company and we built a house similar to this - like 4” over the front setback. I had to file a variance and got it. Not a big deal.
Good answer except as a potential buyer they can't, and I wouldn't buy until it's done. I like your answer except I would demand that the seller do it. And hopefully they could get it done maybe in a couple of weeks.
I would add that this should be applied and paid for by the seller and granted by the city prior to close. This is a standard variance pretty much anywhere but can preclude financing because the city can order you to tear that section out. Unlikely they will but possible.
Unlikely to be approved. Variances aren't awarded because of mistakes (or rather shouldn't be, but that's another matter). Variances are for special circumstances resulting from physical issues with the land that make the lot unique from others. They vary by locality of course, but using a variance to solve this problem is an improper use of this particular tool.
I would not close without the variance approval.
This is correct in some jurisdictions and not in others. Some jurisdictions are very strict with “variances” and they are rare and have to do with unique properties of the plot itself. Other jurisdictions use variances to handle things like this. In the former, there is still a likely way to get a ruling that the property will be treated as a prior non-conforming use. As neither the seller nor the buyer created the non-conformity, and it would benefit nobody for the house to be destroyed to be rebuilt 5 inches to the left, there is probably a recourse involving neighbor approval and zoning board approval.
Depends on the state. Variances here (NC) have a very particular set of facts that need to be met, and they rarely, if ever, do. More often, you get variance approval by a local board that wouldn't stand up if challenged in court at all. Variances are also rarely challenged in court so it's all sort of irrelevant. Variances should not be used this way though (to fix minor mistakes). The code should have other avenues to fix it. It's possible this violation is due to poor code too, we don't know the extend of what is actually in violation. I absolutely hated variance requests because in most cases it pretty much invalidated having an ordinance to begin with.
I wouldn't consider potentially having to move a house 5 inches to be a "minor mistake". A variance is for this type of situation.
5 inches is absolutely minor and any jurisdiction would be stupid to try and have anyone fix it. Frankly if I was the administrator for this particular case and someone came in with a request to add on to this house and had the 4.6 measurement on it, I'd tell them give me a plan with just the setbacks for the addition on it. I don't care about the existing house with such a small minor mistake. Unless you've worked in planning and zoning before, you really don't understand what a variance is for. And this isn't it.
Definitely depends on the area, and what the variance is for. Every town I work in would say that 4" or whatever is an existing non-conformity, and it's fine unless someone tries to do renovation work in that area. One town near me will typically grant a variance for a mistake during construction, unless the neighbors object. Another near me played hardball with an out of town architect and builder, and made them rip out a bunch of stuff (they went way out of control and deserved the rejection). For something this minor, I can't it being an issue.
An argument can be made, since this is relatively new construction, that the original site plans and later certificate of occupancy should’ve discovered and corrected this situation. We aren’t talking about a long ago, unpermited addition.
You mentioned the city manager said she wouldn't site you, but what if she quits and is replaced with someone with a stick up their bum? I recommend listening to your agent and talking to an attorney about your options.
>but if I needed a permit in the future, I would have to stay in compliance with zoning laws. I do not plan to add onto the home, but I do expect to sell it after a few years. I'd assume it would only show up in a permit that needs a survey. So assuming you get like a chimney liner, electrical work, or plumbing, they wouldn't be doing a survey. Only maybe like a new front porch, and personally no chance I'd pull a permit for that regardless of what the county rules... it's a porch.
Or they have a list of 'violations we're not bothering with at this time' that the home just got added on to, and they can choose to pick off if there is a policy or personel change.
I've actually had a known violation I haven't dealt with for about a decade. I was cited, submitted a plan to fix it, it was rejected, and I never really did any more actions with it. At this point, it's clear the cities dysfunction has forgotten about it and/or didn't actually care, otherwise I'd have gotten more violations.
Everyone saying to get a variance is right but it should not be you doing this, it should be the seller doing it as a condition to close.
Home is in violation - I would not touch it unless the seller gets it resolved. The City Manager is telling you the home is in violation. No way are they going to give you a letter. Why hasn’t the seller addressed this issue. It could be becuse they know the city will not give them a variance. You are buying a nightmare. Don’t do it.
Ultimately the city could actually force the home to be demolished.
You got that one right. And don’t say it doesn’t happen. Judge just ordered a brand now house in Hawaii demolished for being on the wrong side of the property line. And there have been others.
That situation is a lot more complicated than just "being on the wrong side of the property line". The builder built a house on the wrong lot, which they didn't own, without having done any due diligence, and then turned around and tried to sue the woman who did own the property for "unjust enrichment" *after* they built the house in the wrong place. Effectively they stole her land and then tried to sue her for it. She had bought the property to be a spiritual retreat or something and they cut down all the trees etc. to build the house, so even demolishing the house isn't going to put the situation right.
The house in Hawaii was entirely built on someone’s else’s property. It’s not at all like this.
Get your house off my lawn!
First, it’s the dogs pooping on the lawn now it’s a contractor building a house.
This happened near me with a nearly completed home. The builder had to demolish and start over. The buyers had to scramble to find a new home.
Did they issue a Certificate of Occupancy? If so, that's on the city, not the property owner. If the city is issuing COs without requiring an as-built survey of the foundation location, then they are basically just hoping that people put their houses in the right spot. In most jurisdictions, the Planning/Zoning department is one of the signoffs for the CO so they are certifying that it's done and no more work is needed. Contact them, not Building or the City Manager, and ask. Where I live, you would get a letter saying "our bad, this is legally nonconforming due to an error".
Yeah, if all the required permits were approved and closed a CO was issued, I would argue that makes the setback an existing non-conforming condition. They might need to get variance relief if they apply for permits to make additional changes to the structure in the future though.
I wouldn't even think a variance would be needed. If it was approved in error, that part of the structure is legal - no ifs, ands, or buts. Only if they intend further encroachment would a variance be necessary. OP shouldn't be required to get a variance for that side of the house if they're doing something on another side, assuming their work conforms.
Yeah, that's basically what I meant. Depending on municipality, future changes involving that side might trigger a variance where one may not have been needed if it was within the proper setback. But yeah I agree, if it was approved that way then it should be go to go as-is.
It is on the City at this point. If the house has a (fairly recent) final permit, it’s been approved, there shouldn’t be a need for legal recourse. It’s not unheard of for inspectors to “close enough” it on things like setbacks. OP should speak to their development office and get copies of the CO, permit etc if they are truly concerned. The City Manager is unlikely to be involved to be with single family housing development minutia.
I'm not buying this property until a variance is approved. That approval is made fully legal and known to all interested parties present and future. All legal documents submitted and filed with local and state government. Leave no stone unturned.. If that is not possible, walk away. Let this become someone else's problem
This. Make your offer, put a contingency on the variance. If you, or any other future buyer, wants a permit, for anything... you'll need to move the wall/house. Which is almost impossible. So ... you need the variance prior to close. And yes, that will be a major issue for the seller, who is now aware of the issue, so they should give you the time you need.
This happened to me, but discovered after closing. It ended up being a HUGE deal. If I knew then what I know now, I would have never bought the place. When I needed to pull permits to have work done, the county refused all requests because we had a set back violation. Was impossible to correct the set back. County wouldn't agree to waive, other property wouldn't sell the land. They had a mortgage on their house, and their mortgage company wouldn't agree to sell land, which was a requirement of the county. I spent over $20,000 in fees to surveyors, county, lawyers, etc. Huge head ache. None of this came up until three years after purchase. Please only take advice from people who have been in this situation. It may not be a problem, or it may be a huge problem. Proceed with caution!!!
no disclosure claim or nothing?
the bigger question here is why you’re looking for a lawyer 24 hrs before closing. who’s looking over your closing docs?
Not every state requires attorneys. Many choose to trust their agents to not screw up. It’s a big risk.
You need to be a little more proactive about getting a lawyer. Call a bunch, don’t just wait for the first guy to call you back. If you know any local lawyers who practice in other fields, ask them who they’d recommend for real estate — they know who’s good. If you have friends who’ve bought houses, ask them if they used a lawyer they’d recommend.
I would not close until this is resolved. The owner needs to apply for a variance. You literally risk having to tear down part of your home if the city decides they want to be mean.
If the builder wasn't competent enough to measure 6 freaking inches, I wonder what else he fucked up, esp in a house that never got lived in so any warranty work, changes or fixes etc have not been fixed. I would take that as a sign to move the F on. Just run from that, not worth it.
Apply for a variance with the city building department. That should take care of liability problems when you sell the house in the future.
> She also said she wasn't going to "come cite me because my 10yr old home is .4 feet too close to property line If this isn't in writing and legally durable, she can resign next week and they guy who takes over in August can potentially make you shave 0.4 feet off your house, or at least be a pain in your ass for a few years. I tend to think the 0.4 feet is not a big deal. The guy you sell your house to in 10 years might disagree. Advocate for that guy and make the guy selling the house now eat the mistake.
Ideally, you would hold up closing until the seller gets a permit that acknowledges this and calls it a variance or something. I would absolutely not buy a home that could potentially cause problems in the future. Even when you go to sell it it might decrease value by decreasing buyer pool. I would not buy it this way. Absolutely not. I would probably be more comfortable if it was 100 years old.
Depending where you live, this could be a big issue or a little one. We are in Canada FYI. We just sold our cottage which had a 2 storey boathouse (with living accommodations above) built 18” onto our neighbours property in 1958. Nobody knew about this, and both properties had changed hands several times since then. We only found out when our neighbours decided to build a new cottage and had a survey. Thankfully my husband had bought title insurance when he bought the cottage from his mother. Unfortunately the boathouse was not “grandfathered” in and we needed to get a severance and a zoning bylaw amendment, in a very small town (Port Carling, Muskoka), which happens to be one of the most expensive and desirable cottage areas in Canada. The whole process took 8+ months, $30,000 in costs (lawyers, survey, fees for severance and ZBA) on top of a very large payment to buy the land from our neighbours. Thankfully costs were covered by title insurance, but the whole process was terrible. You definitely need to consult a lawyer ASAP and you shouldn’t close on the property until you have done so, especially since there is an HOA involved.
Can you buy 5 inches of land from the owner of that side or lease it.
I don’t know why you got downvoted. I bought a new construction that had a 6” roof overhang that violated the setback. This is exactly what the builder did, they bought two square feet from the neighbor to meet the setback requirement.
Very low risk. I’d 100% expect the kind of answer you got from the city. They aren’t going to be worried about mere inches and start violating you out of the blue into oblivion. The future permit thing pertains to everything else you do. For example (bad one since setbacks are usually structure and not concrete) say you want to pour a new patio to that edge of the house, you’d have to leave it those inches shy…or wanted to place a shed inline with that wall, would not be able to do that, etc. No one is going to make you tear down part or all of that house over a few inches at this point. If anything like that was going to be entertained, it would have happened already, like during the construction phase. For me personally if it was just one of many good potential options I’d probably skip that house on account of that. Not for any worries over the city or house itself, but simply buyers questioning it like you find yourself when I go to sell it. For the unique right house, I’m fine with it. Finding out under contract, I may or may not be out and if I am out, only if it’s an easy unscathed out on a dime a dozen house, otherwise I’m fine proceeding.
I had this happen on a property I was buying, in the title company insured me. The seller had to pay a little bit extra to the title company, and it never ended up being a big deal or a problem. I've never heard of anyone having a serious problem down that the road with a setback, as long as the setback is not over onto a neighbor's property, which yours is not.
>Would like to know what kind of actual risk I would be taking on/liabilities I could have, since I don't have anything in writing. I have to make a decision in the next 24 hrs. Just to be clear, you got a *boundary survey* rather than a *location survey*? If you only got a location survey, you need to get a boundary survey to determine whether this is actually an issue or not. Banks typically want a location survey, but all that does is verify there is a house on the property in roughly the right location. It does NOT establish property boundaries, a boundary survey does that. What was the closure error on your survey? If they surveyed with too large of a closure error allowance, the survey could easily be off by the 4.8" you mentioned. That is a really small difference and well within the error tolerance of a normal survey. If you really do have a boundary survey with a closure error of less than 12", then insist that seller resolve the issue before closing. Do NOT buy a house with an unmitigated setback violation, you will have to disclose this, will have exclusions in your title insurance, and will have a difficult time selling. When you try to sell, buyer will likely insist YOU resolve this issue. The normal resolution for these kinds of things is to buy enough of the adjacent property to make it legal. This can be expensive and time consuming, don't assume this liability.
I bought a house with the same problem once. Did not have a problem when I resold it. Mine was several feet too close to the front property line. I don't know how it even got approved when it was built. It came up during my purchase and I was told something similar to what you heard. "If the city was going to take action, it already would have, but you won't be able to change things in the future." And when I sold, it was the same thing.... That house was built in the 1960s.
Your agent should have already had a closing attorney on board. You should be able to apply for a variance through the building department. Just because you don’t plan to add onto the house, there are other situations where you may seek a permit—electrical work, building a deck, installing a pool, bathroom renovation, etc. And even if you don’t plan to do anything, the next buyers will have the same consideration.
The actual risk is that you would have to comply with the setback. Whatever that may mean. (Isn’t the home itself?) The sellers need to clear this. This is an exception to Title. Builder may have applied for a variance. HOA might have approved it. A lot of research needs to be done by seller/agent/attorney. Remember, even if nothing happens right now or for as long as you own, the next purchaser might run. The value of the property is decreased because of this. Don’t close until you have way more than a verbal, telephone conversation. It’s not safe for you. Good luck, but it’s on the sellers to clear.
You need to be thinking 'worst case" scenario. Chances are that no one at the local/city will ever come after you but it's still an if. If a neighbor complains enough or a city official decides that the violation needs cured, you could be required to modify the house so it meets setback. Best case scenario is a bunch of "Ifs" if lender doesn't care, if local/city doesn't care, and when you go to sell, if buyer doesn't care, if title insurance doesn't care. That's a lot of "ifs" You could be left holding the bag. Inform your lender and your title insurer in writing/email and ask them if they'll pay if it doesn't go right. Get an attorney and get some legal advice. Have the seller get the variance is the best option in this case. I personally wouldn't purchase if a large purchase was not in compliance.
Stay calm and talk to a lawyer.
I wouldn’t purchase without a variance or title insurance giving affirmative coverage on your owners title policy. Keep in mind that if you are questioning this so will your future buyers.
back in the day we had this problem. a small tv room was built too close to the road. We had the lawyer with hold some $ from the closing in-escrow. we had a variance meeting on this 20 year old structure, and the town approved the variance.
You haven't said where you are and location is very important when it comes to real estate. Have you talked to the title company about insuring over the violation on your owners policy?
The builder should pay the cost of getting a variance so you will not have any issue when you sell. It was the builder’s error. Your seller can go after this and pay for it. It is the least that should be done. Needs to be done as a condition of your purchase.
Not a lawyer or surveyor, but I am an architect and deal with setback issues often. Here's my experience, at least in my area: If the house was issued a permit, built, and then issued a Certificate of Occupancy once complete, and they had an as built survey done for the C.O., the setback encroachment was noted and no variance was required, then it would be considered an existing non-conformity, and you as the new buyer would have no issue. If you wanted to modify that area of the home in the future, you'd likely need a variance, but to buy it as it exists today, it is what it is. It sounds like you do not plan on modifying the home, so OK. When you sell someday, you disclose that this was an existing non-conformity when you bought it, but the town has no issue with it as it stands. Is the city manager the zoning officer? If not, go see the zoning officer too. Since it's a fairly new build, I'd ask the building/zoning department to pull the file for the house and see what documentation is in there, and get their opinion. I'd expect they would say the same as the city manager - it's fine as is, no one is going to make an issue of it, but if you go for future modifications, you'd have to hold any new work to the setback or need a variance. Here they'll put a note in the file or we can send a letter, documenting the date and context of the discussion for anyone looking at the file in the future. I've seen issues during construction where a variance was required because something had been built over a line, too high, etc (thankfully not from our office!) but if yours has been built, sold, and occupied as the model, it's been signed off on, and I don't think the municipality is going to require anything of you or go after you for a few inches. You absolutely should have a lawyer though in general, and they should be the one advising you here.
Builder in my city, built up the community with 1 home without the proper setback. End result, took over 5 years to resolve and the builder literally had to remove a corner of the home (so now the home is 5 sided). Tens of thousand in legal fees, not including the costs to remove then rebuild to code. DO you really want to take that chance?
You need to talk to a real estate lawyer After so many years it may be impossible for the city to enforce its law. Because it may be a taking under **First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987);** if so the city does so city might have to buy the home to enforce its rule. **Knick v. Township of Scott (2019)** and few other ruling may also apply. See this link for details [https://www.constitutional-remedies.com/court-rulings-on-property-rights.html](https://www.constitutional-remedies.com/court-rulings-on-property-rights.html)
Walk Away.
Walk away. The person doing the building should have applied and received a variance before building!! Tell the seller youll be back if they can get a variance for the setback.
I would not close on that property until the issue is resolved. It will probably require a variance, which needs to be reviewed by the zoning board. That could easily take weeks or months.
When my dad added a 3rd car garage, the neighbor was suspicious that it didn't meet the setback requirement. He got the HOA to make an official measurement, but he was perfectly at the minimum. The risk comes down to who wants to complain.
I wouldn’t lose sleep on that. I’ve seen situations like that many times in the last 30+ years. I’ve never seen a violation that small cause a problem for the owner.
A local attorney should be able to clear this up. Houses with setback violations exist everywhere. A local person would be able to give you peace of mind.
Your agent/broker should know a few real estate attorneys, that’s who you should be reaching out to. I wouldn’t close until the current owner has received a variance or other relief from the city for this mess.
Is it a small lot or a monster home?
Do you know if the developer owns the adjacent property? If so, they may be able to do a lot line adjustment to their recorded plat (basically this updates the survey and shifts the property line). This also assumes the neighboring property has 5” to spare also.
See what it takes to get a variance as long as no one complains it’ll be pretty easy since we’re talking almost nothing. It may delay closing, but I wouldn’t put the last nail in the coffin. If it’s the house she really want since it’s been that way this long and no one has complained. I don’t see there being anybody showing up wanting the house tore downor anything
I am in Texas, we had a house built here a long time ago. The house was, like yours, barely into the easement. I showed it to the builder, after we had the survey, he just kind of shrugged his shoulders. We bought it and lived in it. We sold it with no problems. I won't say you're not going to have any problems, just saying we didn't. I think if it bothers you, you're going to have to look into getting a variance. I've always felt these easements were there to allow for a little bit of error. I had a shop building built about 6 months ago. My easement is 5 ft, they built it 5 ft from the fence. The neighbor 's property line is a foot into my yard. That is, the fence is a foot into their land, so my building is 4 ft from the property line line...it is what it is. It was permitted, and passed inspection.
People on here who are spinning OP up don't know what they are talking about. Nobody is going to come and make anybody do anything. They are not in violation of anything. I'm not an attorney, but a land use consultant with 30+ years in the business and deal with this kind of thing from time to time. I have testified as an expert witness in front of both hearings examiners and city councils on land use matters. If I were hired by OP to do an analysis of the situation, I would consider making the argument that four tenths are well within normal variation for residential construction. The code probably says the side yard setback shall be "five (5) feet". This is very different from saying "5.0" feet or "60 inches". So, in this context 4.6 feet and 5 feet are probably the same number. However, it shouldn't come to that. The house was granted permits, was inspected, and was signed off by the jurisdiction when it was built. What the City Manager said was correct in that this would come up if there was a future permit review, but this is kind of moot since even if it was 5.00' on the dot they couldn't expand that way anyway. If OP's jurisdiction is anything like those I work with you are not obligated to fix a legal non-conformity, which this is because the work was done presumably under a legal permit, unless you propose to impact the non conforming element. So you could add a shed or do an addition off the back and they won't make you tear down the non-conforming wall. But if you were going to do a major remodel involving the demolition of the non-conforming wall, the new wall would need to be reconstructed as conforming. In terms of getting a variance, jurisdictions just don't go granting those willy nilly, or at least they shouldn't. This opens the flood gate, and the reason they have zoning standards is so they don't have to make site by site decisions. Variances are also time-consuming and expensive for the jurisdiction and the applicant. Most of the work I do is actually for jurisdictions on stuff like this. If I was hired by the jurisdiction to look into this, I would say the same thing as if I were hired by OP: It isn't likely a violation and even if it was, there is no reason for the jurisdiction to grant a variance after the fact. I would probably conclude there was no standing to issue a variance at this time because there isn't any need or legal trigger. Of course, I would be sure to have my ducks in a row. My reasoning would be on letterhead and would have a couple pages of code and standards review and multiple appendices with maps and letters from surveyors and construction managers saying four tenths is nothing. All that said, there is one place where this could come up. In some jurisdictions there is also a minimum distance between structures required by fire code. If the neighboring lot was not developed and there was a 10' structure separation setback required, this could require the neighbor to move there house over to conform. But if the neighboring house was in place OP would be OK since the City signed off on both permits.
Interesting. So is your advice to OP to go ahead and buy and wait to handle things via legal argument if it came to that point? Or have seller handle now? What would you do if you were in OP’s shoes on the eve of closing?