Land Use
Public and Private Limits on Land Use
Zoning districts, permitted uses, variance procedures, code adoption and condemnation practice are all set locally and amended locally. Nothing on this page substitutes for the ordinance and the recorded documents affecting a specific parcel.
Owning land has never meant doing whatever you like with it. Two entirely separate systems of restriction sit on top of every parcel: one imposed by government under its own authority, and one created by agreement among private parties and recorded against the title.
The exam tests whether you can tell them apart, because the source of a restriction determines who enforces it, what remedy exists, and whether the owner is owed anything for it. Sorting the source first makes most items on this topic straightforward.
Sorting A Restriction By Its Source
Ask one question about any limitation an item describes: did a government impose this, or did private parties create it? Government restrictions derive from inherent powers held by the state and delegated to local bodies, and they bind every parcel within the jurisdiction whether or not any owner agreed. Private restrictions derive from a recorded instrument and bind only the land that instrument covers.
The distinction drives the consequences. Public restrictions are enforced by a public officer through permits, citations, injunctions and orders. Private restrictions are enforced by whoever holds the benefit, usually a neighboring owner or an association, through a civil action. A municipality will not enforce a subdivision covenant, and an association cannot cite anyone for a code violation.
One more point follows from it. A valid exercise of the regulatory power generally requires no payment to the owner even though it reduces what the land can be used for, while an outright taking of property for public use does require payment. Losing value and losing property are treated differently, and items on this topic frequently turn on that line.
When public and private restrictions both apply and disagree, neither cancels the other. The owner must satisfy both, which means the tighter of the two governs in practice. An ordinance permitting something does not override a recorded covenant prohibiting it.
Restrictions Imposed By Government
Zoning And The Regulatory Power
The authority to regulate private activity for public health, safety, morals and general welfare is the police power, held by states and delegated to municipalities and counties. Zoning is its most visible application: land is divided into districts and each district carries permitted uses, along with controls on density, height, lot area and setbacks. Relief mechanisms exist, typically a variance for hardship in dimension or a special exception for a listed conditional use, and both are granted through a local board on a published procedure.
Construction Codes
Codes set minimum standards for how a structure is built: structural work, materials, electrical, mechanical and plumbing systems, fire safety and accessibility. They operate through the permit, the inspection sequence and the sign-off at completion, and occupancy of a new or substantially altered building can be withheld until the work passes. Codes are adopted locally, frequently from a model code, sometimes with local amendments.
Condemnation For Public Use
Eminent domain is the power to compel a transfer of private property for a public use. The proceeding that exercises it is condemnation, and constitutional protection requires that the owner receive just compensation, generally measured by market value. A taking may be of the whole parcel or of part of it, such as a strip for a road widening or a permanent easement for utilities.
Property Taxation And Escheat
The power to tax is itself a limit on ownership: unpaid ad valorem taxes attach as a lien that generally takes priority over other claims, and the taxing authority may ultimately force a sale to satisfy it. Escheat completes the set of governmental powers, returning property to the state when an owner dies leaving neither a will nor locatable heirs.
Restrictions Created By Private Parties
Recorded Covenants
A developer or owner may impose conditions through a recorded declaration or through language in a deed. Where the requirements for a covenant running with the land are satisfied, the conditions bind subsequent purchasers rather than only the original parties. Typical subjects include permitted uses, architectural approval, building materials, leasing, vehicles and animals. Enforcement falls to the benefited owners or to an association, and courts will refuse to enforce any provision that is unlawful, including restrictions based on characteristics protected under fair housing law.
Easements
An easement grants a right to use land that someone else possesses, for a stated purpose, without granting possession. Where the right benefits an adjoining parcel there is a dominant estate holding the benefit and a servient estate bearing the burden, and the right ordinarily passes with each parcel on transfer. Where the right belongs to a person or company instead of to a parcel, as with a utility line, there is no dominant estate and the transferability depends on the type of interest and on state law.
Liens Against Title
A lien is a monetary claim secured by the property and enforceable by forcing a sale. Some arise by agreement, as a mortgage or deed of trust does. Others arise by operation of law, including claims by contractors and suppliers for unpaid work on the property, and judgments recorded against an owner. A lien does not restrict use directly, but it restricts disposition, since it must ordinarily be satisfied or released before clear title passes.
Points Candidates Miss On This Topic
How does an easement benefiting land differ from one benefiting a person?
The first attaches to a parcel. There are two parcels involved, one enjoying the right and one subject to it, and the right ordinarily travels with the land to each new owner automatically. The second attaches to a party rather than to any parcel, so there is only a burdened parcel and no benefited one. A pipeline or power line easement held by a utility is the standard example.
What does inverse condemnation describe?
It is the mirror image of an ordinary condemnation proceeding. Instead of the government initiating an action and paying, the owner initiates the action, alleging that government conduct has effectively taken the property or destroyed its usefulness without any formal proceeding, and seeking compensation. The standards for establishing it come from constitutional case law rather than from local ordinance.
May a recorded covenant demand more than the ordinance does?
Yes, and this is the standard fact pattern. Where a district's setback requirement is shorter than the setback a subdivision declaration imposes, the owner complies with both by observing the longer one. The public rule sets a floor for the jurisdiction; the private agreement may raise it for the land it covers.
What happens to a use that was legal before the district changed?
An established use that no longer conforms to a newly adopted ordinance is generally permitted to continue as a nonconforming use rather than being shut down immediately. Local ordinances commonly restrict expanding it, rebuilding it after substantial destruction, or resuming it after a period of abandonment, and some provide for it to be phased out over time. The specific treatment is a matter of local law.