Obtaining a Variance to Ensure Marketable Title

Many times homeowners are unaware that a physical structure (e.g., pool cage) located on their property violates local or association regulations (e.g., building setbacks, encroachments into platted or association easements, etc).  More often than not, a survey will provide evidence of such violation.  The good news is there is a possible way in which to correct such a violation.   A variance is, generally, the permission for a homeowner to go outside the limits of the zoning code (“Code”) or association regulations.  The rationale behind the law of a variance is that in some situations the literal application of the Code or association regulations would create a hardship that would not allow any use of the property whatsoever.   Variances can be sought either publicly or privately.

In order to obtain a variance from a public body, it will require the homeowner to submit a variance application with the local government planning department, together with an application fee.  Application fees and procedures can vary from County to County (or City to City).  Depending on the severity of the variance request, it may require a public hearing versus an administrative approval.   The need for a public hearing will substantially increase the amount of time it will take to obtain variance approval (in some cases over 120 days from application submittal).  The criteria generally addressed in a variance application are the following:

  1. Was the hardship self-created?;
  2. The variance is not contrary to public interest;
  3. The variance request is due to special conditions peculiar to the property;
  4. A literal enforcement of the provisions of the zoning regulations would result in unnecessary and undue hardship on the land;
  5. The variance request must be the minimum variance necessary to make any reasonable use of the property;
  6. Consistency with neighborhood and scheme of regulations.

The obtainment of a private variance is generally much easier and quicker, but not guaranteed.  The Association regulations (e.g., Homeowner Association Declarations) more likely than not provide a method of action and relief in the event there is a violation.  Sometimes it’s as simple as obtaining the Association President’s signature without the need for a formal meeting, and other times it may require a certain percentage of the homeowners (within the Association) to sign off on the variance approval.  There are also times that the violation is minor, and has existed for a long period of time, in which case a title underwriter is willing to insure over the issue.  However, this generally requires the title agent to do further digging and obtain title underwriter approval.  Nevertheless, simply insuring over the issue does not correct the violation.

Whether it’s a public or private variance being sought, the homeowner should immediately consult with an attorney to help guide them down the proper path to remedy the violation.  By getting a real estate attorney involved at the outset it should assist in identifying the possible issues and expediting resolution. As always, should you have any questions pertaining to variances we urge you to consult with your local real estate attorney.


Berlin Patten Ebling, PLLC

Article Authored by Jamie Ebling, Esq. jebling@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged. 



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