Most real estate investors, business entrepreneurs and property owners know that they need to do their “due diligence” before entering into agreements to purchase, develop or lease property for a business or investment use. They know that it is important to inspect the premises and property, evaluate the condition and location. And smart investors consider the economic environment. But surprisingly, a number of experienced developers and investors fail to consider the regulatory environment. As a result, many projects lie dormant – sometimes for months, or even years – because of a failure to consider land use, zoning and other local regulations that control the use of property.
Sometimes the property can be developed or used as desired, but only after incurring extraordinary expenses that were not anticipated in the purchase transaction or lease negotiations. Reviewing these critical issues in advance of a transaction can help ensure that the investor or developer can take proper steps to avoid unwelcome surprises in the form of litigation expenses, mitigation costs, and delay. In other words, it helps to “know the territory.”
Typical examples of issues that cause problems include:
- Restrictive covenants imposed by Conditions of Approval
- Legal nonconforming uses limitations on expansion or change of use
- Historic preservation status of a building or site
- Public use and open space easements
- Unresolved code compliance issues
- Assessment Districts
- Zoning restrictions
Because most of these restrictions are imposed by force of law by government entities, they cannot be easily modified, and definitely cannot be ignored. Significantly, under the law, the property owner is deemed to have “constructive notice” of these requirements and is required to be in compliance, whether or not they have actual knowledge. Moreover, government employees (i.e., planners, building inspectors, etc.) have immunity and are not liable even if they provide inaccurate advice about the status of these types of issues affecting your property.