Historic Preservation Laws

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 What Is Real Estate and Property Law?

Real estate and property law is a broad body of law that governs numerous topics, including purchasing, selling, using, and leasing residential or commercial property. Common examples of real estate and property law disputes include:

Real estate and property law also governs the financial aspects of real property, including:

Buying and selling a home or a piece of commercial property is usually one of the most important personal and financial commitments that an individual or a business will ever make. Because of this, it is necessary to know exactly what the individual or business is purchasing in terms of the boundaries, title, and the condition of the premises.

Real estate laws provide protections to all of the parties who may be involved in the transaction, including:

  • Buyers;
  • Sellers;
  • Land owners;
  • Contractors;
  • Real estate agents; and
  • Builders.

During real estate transactions, it is important for the sales and purchase documents to be clearly written in order to avoid any issues or delays later on. A lawsuit may be filed if the parties to a real estate transaction have a dispute.
Real estate litigation may involve many different issues, including, but not limited to:

  • Zoning;
  • Construction defect;
  • Homeowners associations; or
  • Boundary disputes.

Other common real estate and property law disputes may include:

What Are Property Zoning Laws?

The legal term zoning refers to the way that a city or municipality is divided or sectioned off based on the properties and activities that are associated with the properties in the area. In general, zoning laws divide property into two main categories, residential zones and commercial zones.

These two general categories are associated with certain types of properties and activities that are permitted in and around the properties. Usually, these types of zones do not mix.

In other words, they are typically marked off as residential or commercial. In a residential zone, only residential properties and activities that are associated with that type of property are permitted.

Similarly in an area that is zoned commercial, only commercial buildings and activities that are associated with commercial activities are allowed.

What Does “Historic Preservation” Mean?

A property that is qualified for historical preservation is any property or structure and related sites that have a significant importance to the culture, history, or architecture of the area as noted by appropriate governmental jurisdiction.

What Protections Does a Historically Preserved Building Have?

In general, a historically preserved building will have a different standard of building regulations. These regulations, while they are different, still require a historically preserved building to comply with safety codes in order to provide reasonable safety from seismic forces, fire, and other hazards while still offering reasonable availability to and usability by the disabled.

What Does “Landmark Status” Mean?

Landmark status is a building or plot of land that has been designated by the government as having some type of artistic, aesthetic, or historic value. Because of the property’s value to the public, property that is classified as a landmark receives special treatment with regards to its preservation.

The building or land will typically be preserved in or close to its original state. This is done so that the public has a chance to enjoy the historic and aesthetic value of the property.

How Does Landmark Status Affect a Piece of Property?

If a piece of property has been given landmark status, it may raise several legal issues. This is due to the fact that the property will typically be appropriated, or taken over, by the government.

This may have serious consequences on ownership of title in addition to the manner in which the land will be used.

Examples of common legal issues that may arise when a piece of property becomes a landmark include:

  • Condemnation or eminent domain: Principles of condemnation and eminent domain imply that the property will be subject to a legal seizure by the government;
    • In some cases, the property must be destroyed in order to make way for public use of the land;
    • In these cases, the property owner would be entitled to just compensation for the seizure or transfer of title;
  • Just compensation: If the government seizes or takes land for public use because it will become a landmark, the owner of that property is entitled to just compensation;
    • This is monetary reimbursement as calculated by the fair market values associated with such land; and
  • Transfer of title: In many cases, property that becomes a landmark will result in a transfer of title from the private owner to the government;
    • In this case as well, a property owner must be fairly compensated.

Because of these issues, an individual should be aware that if the government has targeted their property for landmark status, they may be entitled to compensation if the government seizes or destroys the property. In some cases, an individual may be able to resist condemnation proceedings.

What Are Some Factors That Go into Making Landmark Decisions?

Some of the factors that are considered when balancing state interests versus private ownership interests include:

  • What the type of public use of the land will be;
  • The history and value of the buildings that have to be destroyed;
  • Whether the project is just beginning or is close to completion; and
  • Whether the owner of the property is interested in receiving monetary compensation for the building or buildings.

Why Have a Different Set of Rules for Historically Preserved Buildings?

The unique set of rules that govern historically preserved buildings are intended to provide for the preservation of the historical value of qualified historical buildings or structures. If any modifications or alterations must be done in order to preserve the structure and to meet general building safety regulations, then the newer guidelines will apply.

How Are Historically Preserved Building Codes Established?

There is a board of commissioners for historic building preservation that oversees and produces alternative building standards and building safety regulations. These standards are submitted to the state building standards commission to be approved.

Are There Any Other Incentives to Register a Property as a Historic?

The government typically creates numerous different types of incentives to provide property owners with motivation to rehabilitate and repair historical buildings instead of demolish them. In addition to modified building codes, other incentives may include:

  • Federal tax credits for rehabilitation of qualified historical properties;
  • Property tax abatement programs;
  • Tax deductions for preservation easements;
  • Architectural, repair, and rehabilitation grants; and
  • Historic preservation properties may qualify for low interest loans.

How Does a Building Become a Historically Preserved Building or Structure?

The board for historic preservation will compile a list of buildings or structures that consist primarily of local, state, or national significance which can then be placed on the national or state register of historic places. Criteria that are typically taken into consideration include that the property:

  • Is associated with events that have made a significant contribution to the patterns of history;
  • Is associated with the lives of people significant in our past; and
  • Embodies a distinctive method, period, or type of construction or has a high artistic value.

Do I Need a Real Estate Attorney?

If you are interested in registering a building as a historic site, it is important to consult with a real estate lawyer. The process may be difficult and time consuming.

Your lawyer can help you complete all of the required paperwork as well as guide you through the historical designation process.

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