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6. Land Use—Rights and Restrictions

In this module, we will discuss:

• Personal property rights

• Government rights and restrictions

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Personal Property Rights

• Right to own

• Right to lease

• Right to convey

• Right to encumber

• Rights to the surface of the land, to whatever lies under the surface and to the air above the land

• Right to manage

• Right to derive income

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Mineral Rights

• Ownership of the mineral estate often is held by parties other than the surface owner

• Presence of minerals such as coal, copper, or oil and gas, will affect the value of land

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Water Rights

• Major issue in the western states

• In some regions the water rights are more valuable than the land-use rights.

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Surface Water Rights

• Riparian doctrine—Owners of land next to a stream or body of water may use that water, but their usage cannot interfere with other landowners’ use of the water

• Prior appropriation doctrine—“First in time, first in right”; water rights based on seniority

• Changes in land use can create conflicting interests regarding water

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Groundwater Rights

Groundwater is the mass of water that occupies the total pore space in the rock and soil.

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Groundwater Rights (cont.)

• Rights vary from region to region

• Three doctrines:1. Absolute ownership—rights are

given to owner of overlying land. Usage is not restricted.

2. Reasonable use doctrine—rights are given to owners of surface land. Use cannot interfere with rights of others.

3. Appropriation-permit system—Based on priority. Prior users have the greatest legal rights.

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Private Land-Use Restrictions

• Life estate—right to use property for remainder of person’s life

• Easement—right held by one person to use land or property of another for a limited purpose

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Easements• Easement appurtenant—for the benefit of another

parcel of land

• Easement by prescription—acquired by continuous and open use

• Easement in gross—for the benefit of a person or company, not for the benefit of another parcel of land

• Easement of necessity—granted by court • Easement by condemnation—exercised under

eminent domain

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Charitable Easements• Given for charitable reasons, usually for

some sort of conservation purpose• Allow owner to retain possession of

property and preserve its character for the future while taking advantage of tax benefits

• Value of charitable contribution of the donated easement cannot exceed 30% of taxpayer’s adjusted gross income.

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Historic Easements

• Owner grants a portion of, or interest in, his property rights to an organization whose mission includes its preservation

• Available for properties on the National Register of Historic Places

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What Do You Think?

The Preservation Alliance for Greater Philadelphia

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Governmental Rights

1. Taxation

2. Police power

3. Eminent domain

4. Escheat

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Taxation

• Government can tax real estate and also change tax rules.

• Fees are a form of taxation.

• Impact fees are charges for improvements that affect public facilities.

• Generally, the developer of a proposed development pays the impact fee.

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Police Power

• Balancing interests of the state against interests of private landowners

• Zoning is a form of police power.

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Zoning

• Critical issue for land developers

• Conventional zoning laws specify:

• Range of land uses for a class of property

• What can be done on the site “by right"?

• Use, height, bulk, density, and location of structures

• Density of units• Size of open spaces• Lot coverage

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Smart Growth

• Land-use planning and growth management principles that gained popularity beginning in the mid 1990s

• Response to the effects of suburban sprawl

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Smart Growth

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Form-Based Codes

• Recent trend

• Focuses more on the size, form, and placement of buildings and parking, and less on land use and density

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Building Local Relationships

• Join local Chamber of Commerce.• Join other local business and

professional organizations.• Participate in community boards and

volunteer organizations.• Know local “experts” in various fields. • Attend City Council meetings.• Make yourself familiar with officials

involved in zoning and building permits.

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Home Cooking

“Home Cooking” is a term to describe using local assistance in the zoning.

Hearings frequently are more effective if an out-of-town buyer or seller use local attorneys, planners, engineers, and brokers who have the political connections and who are well informed in the process in the local community.

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Eminent Domain

• The right of some level of government to take privately owned land for public purposes. The taking must be completed under due process of the law and the owner must be justly compensated.

• The 2005 Kelo decision cleared the way for communities to take property for private development aiming at the economic benefit of a community.

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Escheat

• Provides for the transfer of land ownership to the government when an individual dies without any heirs or a will.