656 Regatta Way in Bradenton, Florida
This month we help to shed some light on what “developer imposed setback violations” are, why they occur and the remedies available. While there are two types of setbacks, governmental and developer imposed, for purposes of this newsletter we will be focusing on developer imposed. These are covered by a Title Insurance policy whereas Governmental setbacks are not.
View PDF Newsletter here: MSCTitle-Newsletter2017-01
Definition of Setback: A distance from a curb, property line, or structure within which building is prohibited. Setbacks are building restrictions imposed on property owners. Setbacks are typically created to prevent landowners from crowding the property of others, allow for the safe placement of pipelines, and helps to preserve wetlands. Setbacks form boundaries by establishing an exact distance from a fixed point, such as a property line or an adjacent structure, within which building is prohibited. Violating setback provisions can lead to legal action against a property owner, and penalties can include fines as well as an order to remove noncompliant structures. It is quite common these days to encounter minor setback violations. We constantly get questions for example, “How did they build the home and violate the setbacks? Didn’t the county sign off on it?” or “why hasn’t this come up by now? The house has been there for over 30 years.” All very real and valid questions, we answer below: 30 years ago, surveyors’ instruments were not as sophisticated as they are today, so when it was originally surveyed, it probably appeared to be compliant. Measurements could have been off by just a few inches. It also wasn’t common place in the industry to review the subdivision restrictions to check the setbacks against a survey. Within the last 15 years, it has become standard practice by the industry to check the restrictions for those setbacks when reviewing a survey. Often times, owners of the property paid cash and never obtained a survey. This last scenario is far too common and leads to a surprise and headache for that seller, which could be very costly to remedy or delay closing for sometimes weeks in some instances. To overcome Developer imposed setback violations, we commonly seek a variance from the Homeowner Association if they have the power and authority to grant such variance. Often times the Association Board does have the power, however there are some instances when a certain percentage of homeowners in the subdivision must agree to the variance. As you can imagine this last scenario can take a lot of time and energy. Fortunately, we do not encounter this too often. There are some cases where there is no active Homeowner Association nor Board to sign off on a variance or the buyer elects not to wait for a variance to be signed. In those situations, there may be coverage available by way of an additional endorsement that protects the purchaser against any litigation for the forced removal of the violation. This cost is typically borne by the seller since it is technically a defect with the property. Each property is reviewed to determine many factors including the risk associated with a potential suit to force removal. A survey is very important when purchasing a single family home. While it is not required when paying cash for a property, it will protect the purchaser and circumvent any problems when they go to sell the home down the road. A home is a huge investment worth spending an additional $350–$500, depending upon the size of the property, for a survey so you understand those matters that can affect the use of your property including easements (the rights of others to use that portion of the property such as utility companies, the county, etc.) and setbacks; as well as where your property begins and ends. For more information, contact MSC Title at 941-552-5211.
