Does the property variance run with the land?

In other words, is the variance granted to a person or a place? Does the variance expire when it’s sold to a new owner? How does this vary (no pun intended) depending on the use of the variance? Let’s dive in and answer a few of these questions.If a variance has been vested, meaning it’s been acted upon, it’ll stay with the property to prevent a future charge against the new owner of violating a zoning regulation. However, if the variance hasn’t been acted on, there’s no guarantee that a new homeowner will be granted the same variance.For example, if a homeowner successfully seeks a variance for a project but then decides to sell the property before acting on the variance that was granted, the new homeowner can’t rely on the previous owner’s variance. They may be subject to a charge of violating zoning ordinances if they complete the work that was dependent on the previous owner’s approved variance. However, if the variance holder makes the change to the property, the variance has vested, and that variance will run with the property to all the subsequent owners.

Variance In Real Estate: Everything You Need To Know

Q: If I get the variance, am I obligated to make the change?

No, unless you want to make sure it’s vested with the property. Getting a variance in no way obligates you to make the change you requested, it just means you are allowed to if you want to.For example, let’s say your family is growing and you decide you want to add an addition to your home. During the planning phase you realize that to do the work you want done, you’re going to need a variance to the setback zoning rule. You go through the process outlined above and your variance gets approved.Now that you have the green light from the city to build your addition the way you want it, you start the process of getting approved for financing the project. Unfortunately, the financing falls through and you’re stuck with a variance that you can’t afford to use. While it is disappointing that you cannot go through with your plan, the silver lining here is that there’s no penalty for not exercising the variance.

7 Min Read

Updated Dec. 15, 2023

FACT-CHECKED

Written By

Victoria Araj

Designers looking at a home layout plan.

To understand what a variance is in real estate, you’ll first need to understand the concept of zoning. Without knowing what zoning means and why certain laws pertaining to zoning exist, you won’t be able to fully understand how a variance works in real estate and why you might need to get one.

Let’s take a look at the basics of zoning and then move on to what variance in real estate is, how to request this, and the different types of variances.

Zoning Overview

You may notice as you drive around your town that similar buildings tend to be grouped together. Perhaps a certain section is dedicated to factories while another is primarily restaurants, stores and other businesses. You probably aren’t likely to find a strip mall in the middle of a residential neighborhood or a factory squeezed between a coffee shop and a bakery. This is a result of zoning – the laws that allow local governments to regulate which areas of your city can have real estate and the kind of real estate they can have.

You may ask, “What are the categories of zoning?” Well, among the most common classifications are residential, commercial, agricultural and industrial zones. It can get more specific from there, but these are the broad categories most commonly used to define the types of real estate that can exist in various parts of a city or town.

Benefits Of Zoning Laws

It’s easy to see the benefits of zoning, which include keeping residential neighborhoods full of homes instead of plopping a noisy factory in the middle of your quiet and peaceful cul-de-sac.

In addition to convenience and preference, zoning helps protect home values. Having houses as your neighboring buildings is more likely to keep the price of homes in the area strong. Deciding how private property can be used through zoning can make a huge difference in the overall desirability of a municipality.

Sometimes, though, property owners may want to deviate from zoning laws for a variety of reasons. If that’s you, it may be time to seek a variance.

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What Is A Variance In Real Estate?

If zoning laws and your vision for your property don’t quite see eye to eye, there’s still hope. It will, however, require an application for a variance or a special permit from your municipality’s zoning authority.

Essentially, a property owner requests a variance when their planned use of their property deviates from local zoning laws designed to protect property values. If granted, a variance acts as a waiver to some aspect of the zoning law or regulations.

Types Of Variance In Real Estate

Although you might request a property variance for multiple reasons, we’ll touch on the two types of variance in real estate that are the most common. They are area variance and use variance.

Area variance: An area variance allows you to make physical changes to your property that zoning requirements otherwise wouldn’t permit. Typically requested by homeowners, an area variance is the most popular type of variance. For an example of a situation involving area variance, let’s say you’re buying a house and want to put up a fence. Here, an area variance – if granted – would allow you to erect the fence where it’s usually not permitted.
Use variance: Typically requested by real estate investors and developers, a use variance – if signed off on – also allows you to use a property in a way that zoning requirements don’t normally allow. For example, a use variance may let you open a commercial property in a residential area, or it may give you permission to renovate a single-family home into a multifamily home.

In most cases, an area variance is easier to obtain than a use variance.

How Do I Get A Variance In Real Estate?

As with most bureaucratic endeavors, local rules will vary from municipality to municipality, but the process of getting a variance generally begins with a variance letter. You, as the property owner, can write this letter or have your attorney do it. When undertaking a process like this, it’s always a good idea to talk with an attorney about strategies as well as local rules and regulations.

The letter should explain exactly what you want to do on the property and why you’ll need a variance to the zoning laws to complete your project.

Once the local zoning authority receives the letter, they’ll notify neighbors or other community stakeholders who might be affected by the grant of a variance. Once that’s complete, a hearing is scheduled for the homeowner to present evidence on behalf of the variance request.

Anyone opposing the zoning change will also get to express their concerns at the hearing, and the zoning authority then votes on the question of whether a variance should be granted – taking into account not only testimony but the effects the variance might have on home values, the neighborhood’s appeal, traffic, noise and more.

If your request is denied, you can usually begin to undertake an appeal process. This process can vary greatly, though, depending on the municipality, so be sure to find the exact process for submitting a variance in your area.

Variance Real Estate FAQs

With any process involving local governments and rules that vary by municipality, questions are likely to arise.

Let’s take a look at a few of the most common ones.

Does a property variance transfer to the next owner?

If a variance has been vested, meaning it’s been acted upon, it’ll stay with the property to prevent a future charge against the new owner for violating a zoning regulation. However, if the variance hasn’t been acted on, a new homeowner isn’t guaranteed to be granted the same variance.

If I get the variance, am I obligated to make the change?

No, you’re not obligated unless you want to make sure it’s vested with the property. Getting a variance in no way requires you to make the change you requested, but it means you’re allowed to. It’s important to note that there’s no penalty for not using the variance.

Does a variance expire?

While you aren’t obligated to make the changes you ask for when you receive a variance, the amount of time you have the option to make these changes can vary. When your variance gets approved, it may or may not have an expiration date. This requires you to make the change you’ve been granted within a year or some other specified time period.

Variances often have an expiration date simply because zoning decisions are time-sensitive and apply to the current state of the area indicated. That said, remember that once a variance is vested, it remains – even if the zoning preferences and laws of the community change over time.

To avoid letting your variance expire, make sure you’re ready – from both a financial and emotional perspective – to undertake the project before you ask for permission to get the ball rolling.

The Bottom Line: Variances Can Help Soften Zoning Regulations

Zoning laws can feel like tough restrictions to private landowners, but they often play an important role in creating great communities. However, if the zoning rules in your town or city don’t mesh with what you have planned for your home, there’s still hope for a resolution.

Variances provide an opportunity for you to reach your goals for the land you own, without changing or defying the zoning of an entire area.

Looking to make some improvements to your home and need a variance?