Does current zoning code overrule decades-old information on property deed?

Q: We bought our home in 1984. The deed read that the home was built on one of two separate lots. We are now thinking about moving. In considering our options, we realized the property values in our neighborhood have increased dramatically. In fact, they’re so high that we’re thinking of razing our existing home and selling the two waterfront lots individually.

We went to our local municipal office to confirm that this could be done. We were told that the city records show us as being on one big lot rather than the two separate lots. If we want to subdivide the lots, we’d have to apply for a zoning change.

The city officials cited all kinds of building restrictions that the city has passed in the 40 years since we bought our home. They strongly suggested that we retain a real estate attorney to help with the subdividing of the two lots.

Since my deed shows the property as two separate lots, and this was my understanding when I bought it, how can the city take it upon themselves to consolidate my lots? Doesn’t my deed take precedence over what the city records show?

A: In all probability, it’s likely that you and your local government office are both right. On the one hand, you’re looking at your property from the viewpoint of an owner that purchased two lots on a lake.

On the other hand, the municipality looks at your property from the zoning perspective. They’ve determined that your property consists of one zoning lot. You could have three or even 10 lots that make up your property. But when taken together, your property consists of one zoning lot.

Your question is commonly asked in areas that have put in place extensive zoning ordinances that try to limit the size of homes and where homes are located within the boundaries of the zoning lot. You often see this happen with municipalities who try to regulate other requirements when it comes to what you can build on a zoning lot.

For example, we can assume that your current home was built between the two lots you purchased and you always considered your home as one residence. Had you built two homes when you purchased the land, one on each lot, each of those homes would have been on one legal lot and one zoning lot.

However, even though you own a home that sits on two legal lots — say lots 4 and 5 of the Lakeview Subdivision — those two legal lots don’t matter for purposes of the zoning code. The zoning code likely states that the minimum lot size for a home must be of a certain size and that once a home is built on one or more lots, that land will be considered one zoning lot.

What the person at your municipal office is telling you is that you can revert back to having two zoning lots, but you’ll have to go before the different boards in your municipality to have them approve and confirm your application. When you purchased your lots, each lot may have been a quarter acre lot and you now have a home on half an acre.

Let’s assume your current zoning code requires all homes to sit on half-acre lots. In this situation, you couldn’t get the zoning board to approve your division since you wouldn’t satisfy the current minimum lot zoning requirements. Now, if your original lots all comply with the current zoning code, you shouldn’t have too much trouble getting the municipality to approve the division. But it will take some time and effort.

The municipal officials are right that you likely need an attorney to assist you in navigating the process. The attorney you hire should be familiar with local zoning laws and with your municipality. Sometimes these attorneys are zoning attorneys and focus their practice on zoning matters and issues that come before zoning and city boards.

Good luck and let us know how it goes.

========

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)