How to Handle a Use Restriction Dispute

Property owners are not always aware of all restrictions placed on their use and enjoyment of real estate. Zoning regulations and other land use restrictions can significantly limit to type of activity and development allowed on particular property, which can also affect property value. Before purchasing a parcel of real estate or beginning any new work on a property, the buyer should always consult with counsel to avoid surprises.

Types of Use Restriction Disputes

Use restriction disputes typically arise either from a problem between neighboring property owners, or a dispute between a property owner and a government agency.

Disputes between neighbors can arise for several reasons, but are often caused by easements. Easements give rights for somebody to use another person’s land for a specific purpose, but possession of the land still belongs to the original owner. Both parties may be restricted by the terms of the easement. For example, the property owner may grant the easement beneficiary a right of way that prevents the property owner for building any structures in the area covered by the easement, but also limits the use by the easement beneficiary to ingress and egress, allowing for no drainage, signage, parking, or other use rights.

A dispute can also arise when the easement beneficiary goes beyond the specific rights given to them by the easement. An easement may give them the right to use land as a right of way, and they may want to pave the right of way, but the land owner might not want or allow paving, preferring a more natural appearance.

Disputes with government agencies over land use restrictions can arise for many reasons. Property owners may seek a zoning variance to use their property for a particular or new purpose. Even after getting a zoning variance, property owners may still be limited by community laws that limit the size of buildings, or even require design of the building consistent with a community’s comprehensive plan.

Before litigation, a property owner may be able to resolve a use restriction dispute through negotiation. If no agreement can be made, litigation can be used to enforce or lift restrictions, depending on the circumstances. In some cases, a property owner can argue that the zoning restrictions on their land are significant enough to amount to a government taking requiring compensation from the government.

Chernoff Law handles real estate litigation and use restriction disputes throughout Arizona. Contact us by calling 480-719-7307 to discuss your real estate matters.

 

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