How to deal with Zoning Conflict

Dealing with different types of Zoning

No matter where you live, sooner or later a question about property lines si going to come up. Who’s right and who’s wrong? This land is mine and so on. There are several ways to handle these arguments but first you must know about the Zoning Ordinances, Zoning regulations, and the desired property use.

First we’ll start with Nonconforming Use. This is when there is a conflict between existing property use and new zoning laws. There are two ways that a use may be nonconforming, the first is when the nature or a characteristic of a building doesn’t meet zoning laws. The second is the activity going on in the building does not conform to the law.

An example would be if you were using a factory in a residential area. The nonconforming use can be limited by time. After that specific time is up the property must be converted to conforming use or sometimes destroyed.

Another variation of Zoning is Conditional Use. Conditional Use  is when use is allowed by a zoning law, but is subject to certain conditions. For example, a rural/residential are might allow a professional office in the zone if they offer off street parking.

Quite often it  requires an approval and confirmation of a conditional use by the zoning laws. The owner would need to follow the application and the approval process with a zoning board and/or the officials.

Variances is another form of common conflict with Zoning. Variances is when a special use permit is an exception to zoning ordinance requirements. Usually you must show some kind of hardship to justify the variance.  Such as when an odd shaped lot messes with the requirements and you can not meet the requirements when building a home.

Spot Zoning  is when the local land use plans and zoning ordinances contain restrictions on land uses in specific areas outlined in the plan or ordinance. After the local government decides on a zoning plan then the property owners can seek exceptions to the requirements.  The owner can either amend the plan or the ordinance or apply for a variance or special use permit.

Every property is different and you may have several options when it comes to finding a solution for your zoning problem. A zoning  or land use lawyer can help you find a solution for your zoning problems.

DiJulio Law Group

Securing Your Residence: a Rental Agreement

Start your landlord-tenant relationship on a firm footing with a rental agreement

In order to start your landlord-tenant relationship on a firm footing and secure your desired residence, you should have a rental agreement signed by both parties. A rental agreement is basically a contract between a tenant and landlord that governs the terms of use and possession of rental property. Upon finding a suitable location you may want to enter into a long-term rental arrangement that could last 12 months or more. However, you may desire a written rental agreement that is shorter, maybe lasting for a period of 30 days and includes an automatic renewal at the end of the 30 day period. Given the many possible forms of rental agreements, there are many reasons why you may want to consult a qualified attorney.

There are many details to keep track of when you’re renting property and the laws governing rental agreements can vary widely by locality. A correctly worded rental agreement will organize all aspects of your lease arrangement in one document. It will clarify your obligations and protect all your rights.

Before You Sign, Have a Lawyer Review the Rental Agreement

Before you sign a lease or rental agreement, you may want to have a lawyer review it to ensure all the standard clauses and mandatory disclosures are present and properly worded so as not to unlawfully abridge your rights as a tenant. Also, if any disputes arise over a rental agreement, your attorney can help you recover damages in a court of law.

Security deposits frequently cause disputes between landlords and tenants. An attorney can explain the legal requirements regarding security deposits and if any interest owed on a security deposit is to be refunded to the tenant. An attorney can also determine if any interest and/or deposit can be applied to repairs, cleaning fees and back rent owed.

DiJulio Law Group

What is Eminent Domain?

Eminent Domain is the power to legally take your property

Eminent Domain is the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. The Fifth Amendment to the U.S. Constitution requires the government to provide just compensation to the owner of the private property to be seized. A variety of property rights are subject to eminent domain, such as air, water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process.

Elements of Eminent Domain

To exercise the power of eminent domain, the government must prove that the four elements set forth in the Fifth Amendment are present: (1) private property (2) must be seized (3) for public use (4) and with just compensation. These elements have been interpreted broadly.

Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items.

Seized The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents

Public Use The third element, public use, requires that the property taken be used to benefit the public rather than specific individuals.

Just Compensation The fourth element set forth in the Fifth Amendment mandates that the amount of compensation awarded when property is seized or damaged through condemnation must be fair to the public as well as to the property owner. Because no precise formula for determining it exists, just compensation is the subject of frequent litigation.

What should I do if I am the subject of Eminent Domain

You should get experienced legal help immediately. The condemning agencies retain experienced eminent domain professionals, and you should too. Know and protect your rights. The government must pay the highest price paid by knowledgeable buyers on the open market.In most situations you should pay attorney’s fees only if you recover more than the government’s offer.

DiJulio Law Group

Can my HOA file a lien against my property?

Who can file an HOA lien against my property?

A “Community Association” may file a condominium or HOA lien for assessments. A Community Association is defined as a nonprofit corporation or an unincorporated association created for the purpose of managing a common interest development including a condominium, a community apartment, a planned development, or a stock cooperative. Any association that filed a declaration may file a lien for assessments.

What can an HOA file for (dues, assessments, etc.)?

A California HOA may file a lien for any regular or special assessment validly assessed by the association. Regular assessments are “dues” to the association, and special assessments are one-time assessments levied to enable the community association to perform its obligations under the governing documents of the association, including an extraordinary assessment for an emergency situation. An HOA may also record a lien for a monetary charge imposed by the association as a means of reimbursing the association for costs incurred by the association in the repair of damage to common areas and facilities for which the member or the member’s guests or tenants were responsible, if such a lien is provided for in the declaration.

What other fees can be included in an HOA lien?

The following amounts may be included in the lien in addition to the amount of the delinquent assessment(s):

  • Late Charges (not to exceed 10% of the delinquent assessment amount)
  • Reasonable Fees and Costs of Collection
  • Reasonable Attorney Fees
  • Interest (not to exceed 12% annually)

What can I do if I receive a Notice of Delinquent Assessment?

You need to contact your insurance company to see if they will cover the claim. You may also need to go talk with an attorney especially if your insurance denies coverage.

There are prerequisites that must be met before a lien for delinquent assessments can be enforced. The HOA must offer the owner, and participate in if requested by the owner, dispute resolution pursuant to the association’s “meet and confer” program, or alternative dispute resolution with a neutral third-party required by California law, subject to certain requirements. Further, an assessment lien may not be foreclosed until the amount of the delinquent assessments alone equals or exceeds $1800 or the assessments are more than one-year delinquent.

DiJulio Law Group

California Transfer Disclosure Statement

A Transfer Disclosure Statement (TDS) is required by Law

In California a transfer disclosure statement, also known in the industry as a TDS, is required by law. This statement requires residential property sellers to disclose, in writing for the buyer, details about the property they have on the market. These disclosure obligations apply to nearly all California home sellers, whether selling a single family home or a condo unit. It also applies to mobile homes. This document is one of the seller disclosures that buyers receive during their contract contingency period.

The TDS form must contain specific information about your home such as any improvements on the property, their condition, and any defects or malfunctions of the improvements. Also included is information about all appliances in the home, including which are included in the sale as well their functionality. Additionally, other pertinent information might concern any room additions, damage, or neighborhood noise problems.

Buyer and sellers have a vested interest in full disclosure

Potential home buyers need to know as much as possible about a property in order to evaluate whether they really want to buy it and the resources they need in order to make the purchase. Knowing about any potential repairs or upgrades needed to areas of the home would be a key factor in their decision to purchase a property. For the seller’s part, they may receive a demand from a buyer that alleges nondisclosure, fraud, or concealment.To avoid such complications and accusations, sellers too, need to disclose all relevant issues.

The sellers are not warranting the condition of the property

It is important to realize that, with the transfer disclosure statement, the sellers are not warranting the condition of the property. They are are simply disclosing its condition.

As it is the seller who is providing the information, this form must be completed in the seller’s own handwriting. Online information is available to aid sellers in filing out the required forms.

DiJulio Law Group

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