In real estate parlance, “non-conforming use” generally refers to a type of zoning variance wherein a person’s property is exempt or excepted from city zoning ordinances. This occurs because the owner had made improvements to the land prior to the current zoning laws being put into effect.

An example of this is where the owner of a house had added another story to their residential home. Suppose that new city law is passed that limits all residential buildings to a certain height. If the home in question is taller than this limit, it presents a problem since the additions were done before the passing of the new law. In such cases, the city might grant a non-conforming use variance, especially if it would be costly to remove the additional story.

What Are the Effects of a Non-Conforming Use Situation?

Variances refer to cases where the local or city government allows the owner to use the property in a way that is somewhat in conflict with zoning laws. Non-conforming use variances are different in that the non-conforming use predates the enactment of current laws. With other variances, the person might be asking permission for exceptions to laws that already exist.

Thus, remedies and legal consequences for non-conforming use might be different than remedies for standard variances, since non-conforming use typically deals with structures that are already in place instead of new structures that have yet to be constructed. If there is no conflict with the non-conforming use, the government may allow the landowner to continue with the non-conforming use of the property. If there is a conflict, it could lead to various remedial measures, such as:

  • Partial destruction: If the structure has been destroyed to a certain degree, the city will have to determine whether rebuilding it will be allowed in light of non-conforming use.
  • Intentional disuse: The land owner may specifically agree to stop using the property in the manner that causes a zoning violation. For instance, if the person was running a business from their home, although this will not work for all situations.
  • Other remedies: Spot zoning (i.e., changing the zoning for a particular section) might be applied, or the zoning law itself might come under reconsideration. Special use permits might also be an option.

Thus, non-conforming use situations might be costly to remedy, as they differ in that the use is already in progress. This requires a great deal of cooperation with local, state and sometimes federal regulatory agencies and the landowner. It can involve a number of legal issues and may sometimes result in litigation, especially if the landowner has suffered or will be suffering losses or damages. Overall regulations for non-conforming use may also be very different for commercial real estate.

Should I Hire a Lawyer for Help with Non-Conforming Use Issues?

Non-conformity questions can often involve a great deal of legal conflict and many different issues. You may need to hire a real estate attorney in your area if you have any questions or conflicts regarding non-conforming use. Your attorney can provide you with legal advice to help determine your rights in such situations. Also, if you need to file suit or appear in court, your lawyer can help represent you during those meetings as well.