I am sometimes asked to explain the phrase “running with the land.” This legal term frequently arises in the zoning/land use context as well as in the purchase and sale context.
Simply put, a variance, covenant or restriction that “runs with the land” remains in the title regardless of ownership. Here are a couple of examples:
Example 1 – Land Use
Owner A obtains an area variance from the local Zoning Board of Appeals in order to construct a new office building that encroaches on the required side yard setback. The area variance contains certain conditions, including the planting of a landscape buffer. Owner A subsequently constructs the office building and sells the property to Owner B. By operation of law, the area variance runs with the land. Owner B receives the benefit of the variance but Owner B is also bound by its conditions. The same principle would apply to a use variance.
Example 2 – Purchase and Sale
Owner A wishes to purchase a parcel of real estate. Owner A signs a Contract of Sale and orders a title report. The title report indicates that the parcel is encumbered by a Declaration of Covenants & Restrictions dating back several decades. The Declaration was required by the local municipality at the time it granted the subdivision and site plan approval. Among other things, the Declaration imposes certain limitations on new construction, restricts access to certain lots via private roadways, and imposes a conservation easement on certain “open space” parcels. Even though the subdivision was approved several decades ago and the property has been conveyed to several owners since that time, the property is still bound by the covenants and restrictions in the original Declaration, which runs with the land.
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