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Understanding Public Encumbrances and Government Regulation of Real Property

This document explains public encumbrances on real property, including zoning laws, building codes, environmental regulations, eminent domain, condemnation, and ad valorem taxation. It covers the roles of government entities and legal processes involved in land use control and property valuation.

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When you purchase real property, you often assume you have absolute control over how you use it. However, the law dictates that the rights of a property owner are not absolute. Various levels of government—federal, state, regional, and local—exercise authority to regulate land use, ensure safety, and protect the public interest. These restrictions are known as public encumbrances.

Public Encumbrances and Land Use Control

Public encumbrances are government-imposed limitations on how land can be used or developed. These regulations are designed to prevent one owner's liberties from interfering with the rights of others, such as preventing a noisy industrial plant from being built next to a quiet residential school zone.

Zoning and Variances

One of the most common forms of local regulation is zoning. Zoning laws dictate the manner in which land within a community can be used and developed, including lot size, building location, and the type of structures allowed.

If a landowner finds that the current zoning laws create an undue hardship, they may seek a variance, which is a formal request for a change in zoning classification. Additionally, properties that were being used in a certain way before new zoning laws were passed may be "grandfathered" in as a nonconforming use. This allows the owner to continue their existing use, though they are generally prohibited from expanding or changing that use.

Building Codes

While zoning controls what you build and where, building codes regulate how you build. These local regulations govern the materials used and the methods of construction to ensure safety. Most building projects require extensive permitting and inspections by local authorities to ensure compliance.

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