Setback Requirement Discovered After Closing
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 721
By Ilyce R. Glink and Samuel J. Tamkin
Summary: After purchasing a home, a ThinkGlink
reader discovers there is a covenant requiring a setback. Sam and Ilyce explain
that many older homes may be legal but non-conforming, therefore, they will
not be in violation of the setback requirement.
Q: We purchased our home six months ago and just found out there is a covenant
requiring a 15 foot side yard setback in our area.
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Our setback is only ten feet. We had a real estate agent, attorney and bought
title insurance and no one told us about this or gave us a copy of the covenant.
We never would have bought this home if we knew this. What are our options?
A: Please don’t rush to judgment on this one. Your situation is rather
common. In some parts of the country, zoning regulations and other covenants
that include setback requirements similar to yours were enacted after homes
were built in a neighborhood.
In these cases, the homes are considered to be legal. You might even hear someone
refer to your home as being “legal but non-conforming.” This means
that the home is okay as it is but does not conform to the current zoning or
covenants that govern your neighborhood.
If the home you purchased is an existing home that was built 50 or more years
ago, you probably don’t have to worry. If the home is a new home, you
may have cause for concern.
You indicated that you had a real estate agent, attorney and bought title insurance
for your closing.
First and foremost, did you hire the attorney to represent you personally in
this transaction and not as the closing attorney? If you hired the attorney
on your behalf, he or she should have reviewed the survey and the title for
the property you were buying. A properly prepared survey should show the setback
If the survey showed the setback line, the title company should have raised
as an exception to title the encroachment of the home over the setback line
by five feet. At that point, your attorney should have discussed with the title
company a way to insure your title against problems that may arise later during
your ownership of the home.
If the survey did not show the setback line or you did not get a survey with
the purchase of your home, and the title company did not list the setback line
on its title commitment, your attorney would not have known about the restriction
and could not have known that the home was 5 feet over the line.
If your attorney knew the issue existed and didn’t discuss this issue
with you at, or prior to, the closing, that was a mistake. Nothing might have
changed if the attorney discussed this issue with you, but at least you would
have known about it and have felt more comfortable with what you were buying
and the risks involved.
Your decision to buy the home might not have changed but you would have been
an informed buyer.
For homes that were built some time ago, title companies in many states can
issue endorsements to their title insurance policies to protect buyers from
the possibility that local authorities or a neighborhood association would attempt
to enforce the rules and force you to move your home back five feet. If you
received this endorsement you have the added comfort of knowing that the title
company will pay for damages you might sustain if you are forced to move the
home or make changes to the home.
Unfortunately if a sloppy builder recently constructed a home over the setback
line, the local municipality may still enforce the setback requirement and force
you to move the home or reconfigure the home to conform requirement.
If the setback requirement is a private covenant – that is a covenant
by an association that rules your community – the association would have
the authority to enforce its rules. You would have to find out what action the
association can take against a homeowner that violates the rules. The previous
owner or the builder might have already complied with any enforcement action
brought against it. You might find that the setback rule is on the books but
there isn’t anybody that can enforce it. If the prior owner or builder
satisfied the homeowners association or the setback rule is not enforceable,
then you’re all set.
Finally, if all the homes in the neighborhood violate the setback rule, it’s
possible that the setback requirement was ignored a long time ago and can’t
be enforced at all.
If your home is new and was built over the setback line, and the setback line
is part of the local zoning ordinance, you should find out if the builder of
the home obtained a variance to allow the home to be built where it is. If the
builder failed to get a variance, you can talk with the local building department
to find out if you can get a variance now. Keep in mind that if you fail to
get the variance you may have to pay to make the home conform to the zoning
What you need now is more information. Sit down with your attorney or find
a real estate attorney who specializes in zoning.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com