Chapter 17

Public and Private Limits and Controls on Real Property

A. PUBLIC LIMITS AND CONTROLS ON REAL PROPERTY

INTRODUCTION

The rights of ownership are not absolute rights because there are public constraints on the owner’s ability to use the property.  The limits and controls fall into five groups: the police powers of the state, eminent domain, taxation/assessment powers, escheat, and forfeiture for crime.  Governments use these controls and limits to provide social benefits to the citizens of the community.  However, each property owner loses a degree of his or her individual rights in the process.

THE POLICE POWERS OF THE STATE

The police powers of a local government derive from the “police power” clause in the federal and state constitutions that provide for government to promote the “health, welfare and safety” of the citizens.  The exercise of the police power results in various laws affecting real estate, including (1) zoning ordinances, (2) subdivision regulations, (3) construction codes, and (4) housing codes.

THE ZONING ORDINANCE

A city or county zoning ordinance usually contains three distinct elements: (1) land-use restrictions, (2) height restrictions, and (3) area or bulk restrictions.

The land-use restriction section of the zoning ordinance classifies all parcels of property in a community into four general categories: industrial, commercial, residential, and agricultural.  The effect is to create a geographic distribution of land uses in the local community.  Such land-use restrictions may legally allow only the use specified and exclude all other land uses (exclusive zoning), or the land-use restriction may legally allow the stated use and all other compatible or suitable land uses, such as residential activity in a commercial zone (inclusive zoning).  The larger categories may contain more specific subcategories.  For example, a residential zone may include subcategories for single-family detached houses on large lots, single-family detached houses on small lots, duplexes, and other multifamily units.

Height restrictions in the zoning ordinance specify the legal height of structures by land-use category and by geographic area.  They could state a maximum height for apartment buildings in the multifamily residential subcategory and a different maximum height for structures in the single-family detached residential subcategory.  The height restrictions could also differ by geographic area.  For instance, they could prohibit tall structures near municipal airports but allow such structures in the central business district.

Area regulations in the zoning ordinance specify the relationship between the structure and the land on individual parcels of property.  For residential property, the area regulations could contain setback rules that establish the minimum distance between the street and the location of the structure.  The regulations could also establish the size of side yards and the minimum size of the building lot.  For commercial property, area regulations could dictate whether the structure is at the front or at the rear of the property.  They could also regulate the location of parking areas by dictating that parking be in front of or behind the building.

CHANGES IN ZONING REGULATIONS

The property owner can try to change the impact of a zoning ordinance in several different ways.  One way is to obtain a variance, whereby the owner asks permission to deviate from the current land-use regulation in some way.  An owner might request a different setback, for example, or a different allowable height.  Usually, the owner argues that the variance will eliminate a hardship.  Another procedure is the rezoning application, whereby the owner asks for a change in the ordinance to allow a different land use on a specific piece of property.  For example, a request to change the zoning from single-family detached to multifamily or commercial use is a rezoning request.

If the local government decides not to grant the request for a variance or a rezoning, it sustains the legally allowable use in the zoning ordinance.

SUBDIVISION REGULATIONS

Subdivision regulations are another use of the police power to promote and protect the health, safety, and general welfare of the community.  A local agency, such as a planning body, reviews and approves builders’ plans for new residential developments within the local jurisdiction.  The regulations prevent construction on floodplains, on land with poor or inadequate drainage capabilities, and on land that has unacceptably steep slopes coupled with soil conditions that could cause mud slides.

Subdivision regulations also require the developer to meet locally acceptable standards for street systems, building-lot specifications, and block size.  The street system standards include the street layout, the design and frequency of intersections, street widths, maximum slopes and grades, curb cuts, and minimum construction standards for the roadway.  Other standards stem from additional areas of concern for health and safety.  For instance, the fire department might require a minimum radius for cul de sacs to allow the maneuvering of firefighting equipment, and the health department may enforce standards for septic systems or wells where public sewer or water is unavailable.

By means of building-lot specifications, the subdivision regulations can discourage the creation of building lots and residential blocks that are inefficient in size and shape, such as lots that are very deep but also very narrow and lots having irregular shapes.
The subdivision regulations require the developer to file a plat map for approval.  A subdivision plat is a graphic representation of the subdivision’s size and shape.  It includes the street system, blocks, and building lots, all represented in scale.  An approved subdivision plat becomes part of the public record.  Prospective buyers of a lot can examine the plat to verify the shape and the dimensions of the land parcel, as well as other restrictions such as setbacks, lot size and height requirements which may have been imposed on the subdivision as conditions for approval of the plat.

IMPACT FEES

Some local governments charge developers impact fees to pay for capital improvements necessitated by their new developments.  Increasingly, local governments are charging these fees as an exercise of the police power.  While impact fees have received much publicity in recent years, they are an outgrowth of local subdivision regulations.  Since the 1920’s, some local governments have required dedication of the streets within a development, and starting in the 1970’s, local governments have expanded this power to charge the developers fees proportional to the “impact” caused by their developments.  Courts in most states have upheld these fees provided there is a “rational nexus” between the fee and the impact of the development.  First, there must be some evidence that the development creates a special need, and the fee must be proportional to that need.  Second, the fee must be used to provide some benefit to the development.  An example would be the need for a school created by a large new subdivision.

CONSTRUCTION CODE

A third example of the police power is the construction code that establishes the minimum acceptable standards for construction within a local jurisdiction.  It specifies the type and positioning of structural members in the floors, walls, ceiling, and roof of a building (for example, placing 2 x 4’s every 16″ on center in the walls and using 2 x 8 x 12’s as floor joists).  It also specifies the minimally acceptable standards for plumbing systems with respect to water-supply lines and waste-disposal lines, and for electrical systems regarding the minimum gauge of electric wires and the minimum number and positioning of outlets and switches.

A local community’s construction code will generally also require the installation of fire-protection devices in buildings, such as multiple exits, fire escapes in multiple-story units, sprinkler systems, and exit signs.  Moreover, the code can prohibit dead-end corridors and structural obstacles that could impede the steady flow of traffic in case of a fire.

Local governments check compliance to the construction code by requiring that the contractor apply for a building permit with the local government’s department of building or construction.  To complete the application for a building permit, the contractor must submit copies of the construction specifications for examination by local authorities.  If the authorities approve the application, they issue a building permit.  The regulations may be many and complex.  A prudent purchaser would make the purchase of undeveloped land contingent upon the ability to obtain a construction permit.  For example, in rural areas with no sewers, local authorities will not issue a building permit unless the land has adequate soil percolation and is large enough to support a septic tank system.

While the work is under way, inspectors from the building department check the work at various stages of completion to see that the contractor is complying with the construction specifications.  A government inspector does a final inspection when the job is complete.  If the work meets the specifications of the building code, the government issues a certificate of occupancy and the structure is then ready for occupancy and use.

HOUSING CODE

A fourth police power regulation of real estate is the housing code.  This code establishes officially acceptable minimum standards for safe and healthy occupancy of existing and newly constructed buildings.  One aspect of the housing code governs the structural quality and physical condition of existing units.  Any building that needs major repairs violates the local housing code.  Moreover, any structure that is lacking certain plumbing facilities, such as hot running water and/or private toilet facilities for individual dwelling units, also violates the housing code.

The housing code can also cover such items as unprotected stairways, improper lighting in hallways, falling plaster, exposed electrical wiring, and the use of lead-based paints.  The government can fine the owner of a building that has any of these safety or health defects and require the owner to pay the cost of repair.  Depending on the extent of repairs, the owner may have to obtain a building permit at the outset of the repair work and a certificate of occupancy upon completion.

EMINENT DOMAIN

Another public limitation on the rights of property owners is eminent domain.  Eminent domain is a right vested in the state government and delegated by statute to local governments, and sometimes even to certain agencies and private entities, to acquire private property without the consent of the property owner.  Condemnation is the act of taking private property by using the power of eminent domain.  The government must use the property for a public use, purpose or benefit and pay fair or just compensation to the owner.  Moreover, the property owner is entitled to due process of law.  Thus, three important factors limit the local government’s ability to acquire private property under eminent domain: (1) public use, purpose or benefit, (2) fair or just compensation, and (3) due process of law.

Either the legislature or the courts may decide what is a public use, purpose or benefit.  The courts may pass judgment on an existing law with its specific statement on public use and purpose, or the courts may decide the legality of some specific public purpose.  To date, the legal system in this country has found the following activities to be acceptable public purposes:

In the law, fair or just compensation means payment for the actual loss that the property owner sustains because of the condemnation process, including damage done to the owner’s remaining property and the expenses caused by the proceedings.  (Title 22, Georgia Code)Generally, the standard applied is the market value of the condemned real property.  The courts recognize the three methods for estimating market value or the potential selling price that appraisers use: comparable sales, the present value of future net income from the property, and the construction cost of a comparable structure.  (See the detailed discussion of these three methods in Chapters 35, 37, and 39).

However, the market value of the property is only one aspect of the question of compensation.  The owner may sustain certain losses other than the market value of the real property taken.  Some of these losses may require compensation above the market value.   Such losses could be:

For partial condemnations, one of two approaches may decide the compensation.   The first attempts to discover the market value of the condemned portion of the property.  Generally, this approach applies if the property is unimproved land.  The second approach is to attempt to discover and quantify the impact of the taking on the remaining portion of the property.   Will the market value of the remaining property increase because it is next to the public use?  Or will the market value of the remaining portion decrease because of proximity to the public use?  For example, the city might take part of Mr. Smith’s property to construct a municipal office building or a landfill.  Construction of the office building could have a positive effect on Smith’s remaining property, whereas the construction of a landfill could be very detrimental.

The third requirement in eminent domain proceedings is “due process.”  The United States Constitution and the state constitutions provide that no person shall be deprived of the rights to life, liberty, or property without due process of law.  The property owner must have every legal opportunity to plead his or her case before the courts if the level of compensation offered is not satisfactory or if there is doubt about the public nature of the proposed use of the property.

The government’s right of eminent domain is more than a limit on the rights of ownership, because the government can deny the individual’s property rights of use, possession, and disposition.  This denial of rights imposed under eminent domain is more severe than the restrictions imposed under the police-power provisions.  The police power limits the right of use, but the owner retains the right of disposition.  Eminent domain requires compensation to the owner, whereas the government is not required to give such compensation under the zoning ordinance or the use of its other police powers.

TAXATION AND ASSESSMENT POWERS

Local jurisdictions have a legal remedy if an owner does not pay the property tax.  The local government has a specific lien, the property tax lien, against the delinquent property, and by this lien, it can force the sale of the property to obtain the delinquent taxes.  This forced tax sale overrides the property owner’s rights of possession and disposition.

Tax liens arise out of two types of property taxes.  Special assessments are charges that a local government levies against property owners for public services such as streets, storm-drain systems, and water and sewage disposal systems.  These charges directly affect the value of the individual parcels.  Assessment charges are value-enhancers for specific properties.  In contrast, the services provided and paid for under the ad valoremproperty tax enhance the value of all property in the community.

If the property owner fails to pay either the ad valorem taxes or a special assessment, the taxing authority, under the specific lien against the delinquent property, can sell the property to obtain the delinquent payments.  This forced sale overrides the property owner’s rights of possession and disposition.

Liens for property taxes are high priority liens.  They will take priority over security deeds recorded before the taxes became due.  This priority of tax liens is an exception to the normal rule that courthouse recording dates determine lien priority.  Lenders realize the risk that property tax liens can pose, so often the lenders require escrow accounts when granting loans.  The borrower pays one-twelfth of the annual tax bill each month to the lender, and the lender then pays the taxes each year from this escrow account, to be sure the county or city does not file a lien for delinquent taxes.

FORFEITURE OF LAND FOR CRIME

The State of Georgia and the federal government both have Racketeer Influenced and Corrupt Organizations (RICO) Acts.  These acts allow the state or federal government to seize personal and real property used for racketeering purposes or purchased with proceeds from racketeering activities.

ESCHEAT

Another public limit on private ownership rights is escheat.  When a property owner dies without leaving a will or legal heirs, the real estate tentatively belongs to no one.  In this event, the state government uses the power of escheat to claim the land for the state.  In this sense, the power of escheat is not really a limit, but the government asserting itself as the ultimate property owner.  When the possession and disposition of property are uncertain because of the lack of heirs, the state assumes possession and all other rights of ownership of the property.

B. PRIVATE LIMITS AND CONTROLS ON REAL PROPERTY

INTRODUCTION

The rights of ownership are also subject to private constraints on the owner’s ability to use the property.  The limits and controls include (1) the easement, (2) the lien, and (3) the restrictive covenant.

THE EASEMENT

An easement is the right of one person to use the property of another for a specified purpose and under certain conditions.  The person holding the easement does not possess the property nor does that person have the right to dispose of the property.  However, someone holding easement rights may transfer those rights to others.

Two types of easements exist – the easement appurtenant and the easement in gross.  The easement appurtenant exists when there are at least two parcels of land and one of those parcels (the dominant estate) receives benefits from the use of the other parcel of land (the servient estate).  An example of an easement appurtenant is the right of the owner of parcel A to use an access road across parcel B.  The owner of parcel A enjoys the easement and parcel A is the estate that receives the benefits from the access road.   Parcel B is the servient estate, the estate that provides the benefit or service.

The appurtenant easement right held by the owner of parcel A, over the land described as parcel B, is irrevocable by the owner of parcel B when the owner of parcel A uses and maintains the easement.  Thus, the easement “runs with the land.”  One owner of parcel A can pass the right to use parcel B to successive owners of parcel A.   Subsequent purchasers of parcel B take possession of the real estate subject to the appurtenant easement against the property, and they must continue to honor it.

The second type of easement, the commercial easement in gross, also “runs with the land,” but it involves only one parcel of real estate.  Examples of this type of easement are the rights-of-way that private corporations, such as railroad companies, pipelines, and public utilities, have across an individual parcel of land.

There are many ways to create easements.  The most common way is by agreement between the parties involved.  In this situation, the parties strike an acceptable agreement about the nature of the use and, sometimes, the duration of the right to use the property.  A second way to create an easement is by necessity or implication.  Sometimes the law implies an easement if the circumstances warrant.  The buyer and seller may fail to create a written easement due to an oversight or error.  For example, Mr. Jones sells Mr. Smith the back forty acres of his farm.  Other owners bound the land on all sides, and there is no access to a road.  Here, the court would recognize that Smith has an easement across Jones’s land by implication or necessity, if the court determines that under the circumstances surrounding the sale, a prudent buyer and seller would have decided the need for such an easement and would have created it.

Easements carry certain rights and duties for each party involved.  The easement holder has a limited right of use, and the owner of the land burdened by the easement cannot interfere with the easement.  The easement holder, however, cannot use the land in a prohibited manner.  Moreover, the easement holder must maintain the physical part of the servient estate affected by the easement.  To do this, the easement holder has the right to enter the property and to do the necessary maintenance and repair work.  For example, if the servient estate contains an underground drainage system serving the dominant estate, the owner of the dominant estate, who is the easement holder, has the duty to maintain the drainage system and the right to enter upon the servient estate to do so.

THE LIEN

The lien is the right of a creditor to force the sale of a debtor’s property to obtain payment when the debtor does not pay the debt.  When the creditor’s right to petition to force a sale affects a certain parcel of real estate only, the lien is a specific lien.  When the creditor’s claim affects all properties owned by an individual within a particular jurisdiction, the lien is a general lien.

One example of general lien is a judgment lien, which would affect any and all property owned by the judgment debtor in the county where the judgment was obtained.  Examples of specific liens include materialmen’s liens and tax liens.  The tax lien is the most common specific lien.  If a landowner fails to pay his or her property tax bill, the local government has the right to force the sale of that specific piece of property to collect the unpaid taxes, but not other property owned by the same person.  If the property sells for more than the amount of the unpaid taxes, the former owner receives a cash settlement from the local government that is the difference between the sale price and the unpaid tax bill.

RESTRICTIVE COVENANT

A restrictive covenant is a private limitation on the use of real property.  Restrictive covenants may be placed in a deed or in a separate recorded document called a “declaration.”  Since the owner of the property has control of that property subject to public limits, the owner can sell the property on whatever terms he or she chooses.  One of these terms could be a restriction on the future use of the land.  However, unreasonable restrictions can adversely affect the marketability of the property.  Also, an owner may not create covenants that violate the law, such as restrictions contrary to the Civil Rights Act.

There are two major categories of restrictive covenants.  First, an owner who sells one parcel but retains possession of adjacent parcels may place restrictions on the parcel sold.  The owner may not want an industrial site next to his or her property, for example, so the owner might place a restrictive covenant in the deed forbidding industrial use of the adjacent land he or she is conveying to the purchaser.  Second, a land developer can impose restrictions to make a residential subdivision more attractive.  In this case, the restrictions could limit the types of dwelling units constructed and the types of allowable additional structures, such as storage buildings or fences.

The second class of restriction is the general plan restriction.  Under the subdivision-regulation provisions of the local government, the developer must file a plat, or map, of the subdivision’s street layout and building lots.  At this point, the developer can also record a declaration of restrictive covenants.  Upon sale, the deed for each lot should contain (but is not required to contain) a clause stating that the parcel of land is subject to the restrictive covenants.  Restrictive covenants are limited by statute to a twenty year period in areas subject to zoning laws, but there is an exception for subdivisions of 15 or more lots.  (O.C.G.A. § 44-5-60)

The purpose of these general plan restrictions is to create a rule that any landowner can enforce against any other landowner in the subdivision, although most modern subdivisions are governed by homeowners’ associations with powers to enforce the covenants.  The restrictions are enforceable because each landowner buys the parcel with knowledge of the restrictions and, through the act of purchase, agrees to abide by the subdivision’s plan and its restrictions.  To enforce the restrictions, all that needs to be shown is that the violator purchased a lot and received either notice of the restrictions, such as some evidence of their existence in the deed, or had constructive notice of the restriction by virtue of the declaration having been recorded in the public records.

The various contracts used in real estate transactions may impose other restrictions.  For example, security deeds contain clauses restricting the owner’s right to alter, remove, or demolish portions of the real estate, and requirements to keep the property in good repair.  These clauses thus limit the owner’s freedom to destroy the improvements constructed on his or her property or to ignore the condition of the physical real estate.

HOMEOWNERS’ ASSOCIATIONS

Condominiums and many subdivisions have homeowners’ associations.  These associations act as private governments to carry out the common purposes of the property owners.  Homeowners’ associations collect assessments, maintain recreational facilities, maintain common areas, and provide insurance and management services.  Some subdivisions, particularly those created prior to the 1990’s, do not have homeowners’ associations.  For more information on these associations, see the chapters on property management.