Deck on setback- violation?

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Topic Author
Ani
Posts: 193
Joined: Wed Aug 22, 2018 10:03 pm

Deck on setback- violation?

Post by Ani »

Hello All,
I am buying a home in NJ, my wife loves this home. We are stuck in attorney review. The only thing holding us back is a potential setback violation by the home's deck.

We are worried about the city coming back after we buy the home and saying----> the deck is illegal + demolish it + you owe a couple thousand dollars in back taxes!




Here is what the seller disclosed in the sellers disclosure:

"The Buyers acknowledge that the 1997 survey map shows that at the time the Sellers purchased the Property, the wood deck
extended beyond an apparent 50-foot rear yard setback line. The Sellers represent that the
Sellers have not modified the size, shape or location of the wood deck.

Although the Sellers’ 1997 title insurance policy included a survey endorsement that did not state any
exception to coverage for this apparent encroachment of the wood deck over a rear setback
line, and although the Sellers represent that during the entire 23 years that the Sellers have
owned the Property no municipal code enforcement official, neighboring property owner,
or any other person has ever communicated to them any objection, challenge or demand
regarding the size or location of the wood deck with respect to any setback line.

The Sellers make no representations or warranties regarding the conformance of the rear deck with any
setback restrictions established by municipal land use ordinance, by covenant, or by filed
subdivision plat.
The size and location of the wood deck on the Property with respect to
any setback line shall not constitute grounds for the Buyer to terminate the Contract as a
title defect under paragraph 11 of the Contract or as a municipal ordinance violation under
any other provision of the Contract, and the Buyer shall accept the wood deck in its present
shape, size and location."





Would greatly appreciate any insights.
P.s. The seller himself is an attorney.
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ResearchMed
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Re: Deck on setback- violation?

Post by ResearchMed »

Is there any local law/regulation that would allow something to be grandfathered in "as is" such that any current zoning violation or such would not apply?
That could possibly apply, depending upon wording, whether the violation was "in accordance with then-current code" or not.

That should be something that your real estate attorney can determine fairly quickly (aside from any departmental closures due to the pandemic, anyway).
Then you should be clear about whether there is any chance of any regulatory agency coming after you later.

RM
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Topic Author
Ani
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Re: Deck on setback- violation?

Post by Ani »

ResearchMed wrote: Tue Jul 07, 2020 7:43 pm Is there any local law/regulation that would allow something to be grandfathered in "as is" such that any current zoning violation or such would not apply?
That could possibly apply, depending upon wording, whether the violation was "in accordance with then-current code" or not.

That should be something that your real estate attorney can determine fairly quickly (aside from any departmental closures due to the pandemic, anyway).
Then you should be clear about whether there is any chance of any regulatory agency coming after you later.

RM
Thank you.
My real estate attorney told me to start an OPRA request to the city. I have asked a list of questions to the city. They answered all questions- except for this one pertaining to the deck. Not sure why they are dodging this question.
coynerone
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Re: Deck on setback- violation?

Post by coynerone »

They are dodging it because they might technically have to tell you no. Give them a reason to say yes and then proceed. I once bought and sold a house where part of the roof was in the next door property. No problems resulted.
stungerz
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Re: Deck on setback- violation?

Post by stungerz »

I had a neighbor where their deck was 10-15 feet into a park property but the city didn’t pay much attention due to the park being big and densely forested.

From what I am reading, you cannot have a deck that is within 50’ of your property line. How much does the deck encroach on it?
Jack FFR1846
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Re: Deck on setback- violation?

Post by Jack FFR1846 »

My neighbor's house was within the setback, probably discovered when the previous owner of my house had a survey done. If the neighbor wanted to change kitchen cabinets (within the setback), they would have to apply for a variance. I would get notice that if I wanted to object to write or show up at the hearing. Eventually, I sold that neighbor some land to eliminate the problem.

How your town handles this....I don't know. Without a complaint, they probably won't do anything. But I think if I were buying, I would remove any of the deck that's in violation territory. Or have the seller do this as part of the conditions of the sale.
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JediMisty
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Re: Deck on setback- violation?

Post by JediMisty »

Ani wrote: Tue Jul 07, 2020 7:32 pm Hello All,
I am buying a home in NJ, my wife loves this home. We are stuck in attorney review. The only thing holding us back is a potential setback violation by the home's deck.

We are worried about the city coming back after we buy the home and saying----> the deck is illegal + demolish it + you owe a couple thousand dollars in back taxes!




Here is what the seller disclosed in the sellers disclosure:

"The Buyers acknowledge that the 1997 survey map shows that at the time the Sellers purchased the Property, the wood deck
extended beyond an apparent 50-foot rear yard setback line. The Sellers represent that the
Sellers have not modified the size, shape or location of the wood deck.

Although the Sellers’ 1997 title insurance policy included a survey endorsement that did not state any
exception to coverage for this apparent encroachment of the wood deck over a rear setback
line, and although the Sellers represent that during the entire 23 years that the Sellers have
owned the Property no municipal code enforcement official, neighboring property owner,
or any other person has ever communicated to them any objection, challenge or demand
regarding the size or location of the wood deck with respect to any setback line.

The Sellers make no representations or warranties regarding the conformance of the rear deck with any
setback restrictions established by municipal land use ordinance, by covenant, or by filed
subdivision plat.
The size and location of the wood deck on the Property with respect to
any setback line shall not constitute grounds for the Buyer to terminate the Contract as a
title defect under paragraph 11 of the Contract or as a municipal ordinance violation under
any other provision of the Contract, and the Buyer shall accept the wood deck in its present
shape, size and location."





Would greatly appreciate any insights.
P.s. The seller himself is an attorney.
I live in NJ. When my ex-fiance sold his house, it became an issue that the buyer realized the deck was too close to the neighbors property. We removed the railing, cut a few feet off, then reattached the railings. Problem solved. I also guess they dodged your question as a favor to you. Technically, the township had to tell you to dismantle the deck, because it must not have been permitted in the first place. You do run the risk, however slight, of being required to dismantle it at your expense. This is why the legal CYA from the lawyer-seller. (My former husband is an architect, licensed in NJ. He has many horror stories of enforcement in NJ.) Some townships are worse than others and look for reasons to fine homeowners. Decks are visible since they are outside. IANAL. You have to decide if you want to accept the small risk of it being an issue in the future.
Topic Author
Ani
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Re: Deck on setback- violation?

Post by Ani »

Thank you all.

I wish they would tell me now-- so that I can ask the seller to fix it or reduce the property price.

rather than tell me later-- and me worrying about demolishing the deck at my expense plus worry about someone falling on this possibly illegal non-conforming deck.
Mr. Rumples
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Re: Deck on setback- violation?

Post by Mr. Rumples »

If I read this correctly, they disclosed and are acknowledging that they have done something illegal and now are asking you in a contract to be complicit in that illegality. How can that clause be enforced and how can a relator present that to you with a straight face?

Perhaps the response should be an escrow account for back taxes should they come due. You can then call the county and get it legal.

As noted above, if it is illegal and there is an injury, what would the insurance company say?

(In my neighborhood, Dominion energy came through the right of way and had owners move all structures which over the years had been put up. In my little stretch, above ground pools, sheds, fences (other than those with a cattle gate), greenery were all removed. Some had been there for decades.)
"History is the memory of time, the life of the dead and the happiness of the living." Captain John Smith 1580-1631
Topic Author
Ani
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Re: Deck on setback- violation?

Post by Ani »

Thank you.

I generally am skeptical of anything that any realtor says or emails. :)


Best case scenario would be demolishing the deck and maybe building a confirming patio.

But then, the seller( who is an attorney) could have easily done that in the 3 years they have been trying to sell an otherwise great house.

The seller could've easily fixed this issue, rather than spend time writing lengthy disclaimers on contract. This is a longest paragraph in the entire contract :!:
Mr. Rumples
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Re: Deck on setback- violation?

Post by Mr. Rumples »

ResearchMed wrote: Tue Jul 07, 2020 7:43 pm Is there any local law/regulation that would allow something to be grandfathered in "as is" such that any current zoning violation or such would not apply?
That could possibly apply, depending upon wording, whether the violation was "in accordance with then-current code" or not.

That should be something that your real estate attorney can determine fairly quickly (aside from any departmental closures due to the pandemic, anyway).
Then you should be clear about whether there is any chance of any regulatory agency coming after you later.

RM
I was thinking this too. Of course each state is different, but in VA it seems there are two things in play, one criminal prosecution which only goes back 5 years under Section 19.2-8 (this specially addresses building code violations which are misdemeanors), so they would be off the hook in that regard for a building code violation. The second however is that if a structure is built illegally at the time, it doesn't become legal just because its been there. I suppose there is a statute of limitations on how far back they go on taxes, but taxes with interest and penalties can add up.
Last edited by Mr. Rumples on Tue Jul 07, 2020 9:28 pm, edited 1 time in total.
"History is the memory of time, the life of the dead and the happiness of the living." Captain John Smith 1580-1631
Saving$
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Re: Deck on setback- violation?

Post by Saving$ »

How far into the setback is the deck? If the house is 2' from the setback, and you have a 20' deck 18' into the setback, then worst case scenario is that you have to eventually remove almost the entire deck.

If the house is 18' from the setback, and you have a 20' deck 2' into the setback, worst case is you have to make the deck 2' smaller. If that were the case I suspect the seller many have already done it, but...seller is a lawyer. It took them 10 minutes and no cost to write that paragraph, and it would be MUCH more effort to redo the deck even making it 2' smaller.

What I would be most concerned about is if the deck needs repair. Are you able and willing to do this work yourself or will you have to hire it out? If you need to hire it out and a permit is required, then you may run into a problem.
atikovi
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Re: Deck on setback- violation?

Post by atikovi »

There is some rule about adverse possession that after so many years, part of the property in question becomes legally yours if nobody else has a claim or complaint filed. After 23 years, I wouldn't worry about it. Worse case, you have to trim back the deck to conform to the setback. A chain saw will take care of that.
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ResearchMed
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Re: Deck on setback- violation?

Post by ResearchMed »

atikovi wrote: Tue Jul 07, 2020 9:36 pm There is some rule about adverse possession that after so many years, part of the property in question becomes legally yours if nobody else has a claim or complaint filed. After 23 years, I wouldn't worry about it. Worse case, you have to trim back the deck to conform to the setback. A chain saw will take care of that.
I'm not sure if a zoning violation (if that's indeed the case here) is the same as adverse possession. (I just don't know.)

We have a garage that is attached to our house, and it appears to be the same age as the house (circa 1920/30), but it is an odd setup and the wall in between the house and garage is the same as the outside stone wall all around the rest of the house.

Anyway, it is extremely obvious that the far side of the garage is waaaay too close to the property line.
We needed to have the garage repaired a few years after we moved in, and we had to be VERY careful not to change the outside dimensions, especially anything on that buffer zone.
As long as we didn't move the offending walls/dimensions, the garage was grandfathered in.
(It was too bad, as we would have loved to make it slightly wider, but that would be risking being required to take down most of the garage.)

So it just depends upon how the local codes are written.

OP, why is your attorney having *you* work with the city? Wouldn't the real estate attorney have much better/faster/more accurate luck and know just whom to contact, what questions to ask, and which answers were or were not sufficient for the information you need?

RM
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Topic Author
Ani
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Re: Deck on setback- violation?

Post by Ani »

ResearchMed wrote: Tue Jul 07, 2020 9:55 pm
atikovi wrote: Tue Jul 07, 2020 9:36 pm There is some rule about adverse possession that after so many years, part of the property in question becomes legally yours if nobody else has a claim or complaint filed. After 23 years, I wouldn't worry about it. Worse case, you have to trim back the deck to conform to the setback. A chain saw will take care of that.
I'm not sure if a zoning violation (if that's indeed the case here) is the same as adverse possession. (I just don't know.)

We have a garage that is attached to our house, and it appears to be the same age as the house (circa 1920/30), but it is an odd setup and the wall in between the house and garage is the same as the outside stone wall all around the rest of the house.

Anyway, it is extremely obvious that the far side of the garage is waaaay too close to the property line.
We needed to have the garage repaired a few years after we moved in, and we had to be VERY careful not to change the outside dimensions, especially anything on that buffer zone.
As long as we didn't move the offending walls/dimensions, the garage was grandfathered in.
(It was too bad, as we would have loved to make it slightly wider, but that would be risking being required to take down most of the garage.)

So it just depends upon how the local codes are written.

OP, why is your attorney having *you* work with the city? Wouldn't the real estate attorney have much better/faster/more accurate luck and know just whom to contact, what questions to ask, and which answers were or were not sufficient for the information you need?

RM



I suppose the attorney 's "flat fee " structure has something to do with this :annoyed

A per hour attorney would be more proactive I'm guessing..
Topic Author
Ani
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Re: Deck on setback- violation?

Post by Ani »

Saving$ wrote: Tue Jul 07, 2020 9:28 pm How far into the setback is the deck? If the house is 2' from the setback, and you have a 20' deck 18' into the setback, then worst case scenario is that you have to eventually remove almost the entire deck.

If the house is 18' from the setback, and you have a 20' deck 2' into the setback, worst case is you have to make the deck 2' smaller. If that were the case I suspect the seller many have already done it, but...seller is a lawyer. It took them 10 minutes and no cost to write that paragraph, and it would be MUCH more effort to redo the deck even making it 2' smaller.

What I would be most concerned about is if the deck needs repair. Are you able and willing to do this work yourself or will you have to hire it out? If you need to hire it out and a permit is required, then you may run into a problem.
From the survey, it appears that half of the deck is into the setback..
I'm getting my own survey as per attorney, so that might shed more light
Saving$
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Re: Deck on setback- violation?

Post by Saving$ »

Good idea to get your own survey. If it confirms half the deck is in the setback, your decision is:
Are you willing to buy the house if eventually your deck size must be half of what it is now?
JonnyB
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Re: Deck on setback- violation?

Post by JonnyB »

Mr. Rumples wrote: Tue Jul 07, 2020 8:58 pm If I read this correctly, they disclosed and are acknowledging that they have done something illegal and now are asking you in a contract to be complicit in that illegality. How can that clause be enforced and how can a relator present that to you with a straight face?
The Buyers acknowledge that the 1997 survey map shows that at the time the Sellers purchased the Property, the wood deck
extended beyond an apparent 50-foot rear yard setback line. The Sellers represent that the
Sellers have not modified the size, shape or location of the wood deck.
The deck was already there when the sellers moved in. They haven't modified it. It isn't clear that they have done anything illegal.
Kennedy
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Re: Deck on setback- violation?

Post by Kennedy »

ResearchMed wrote: Tue Jul 07, 2020 9:55 pm
atikovi wrote: Tue Jul 07, 2020 9:36 pm There is some rule about adverse possession that after so many years, part of the property in question becomes legally yours if nobody else has a claim or complaint filed. After 23 years, I wouldn't worry about it. Worse case, you have to trim back the deck to conform to the setback. A chain saw will take care of that.
I'm not sure if a zoning violation (if that's indeed the case here) is the same as adverse possession. (I just don't know.)

We have a garage that is attached to our house, and it appears to be the same age as the house (circa 1920/30), but it is an odd setup and the wall in between the house and garage is the same as the outside stone wall all around the rest of the house.

Anyway, it is extremely obvious that the far side of the garage is waaaay too close to the property line.
We needed to have the garage repaired a few years after we moved in, and we had to be VERY careful not to change the outside dimensions, especially anything on that buffer zone.
As long as we didn't move the offending walls/dimensions, the garage was grandfathered in.
(It was too bad, as we would have loved to make it slightly wider, but that would be risking being required to take down most of the garage.)

So it just depends upon how the local codes are written.

OP, why is your attorney having *you* work with the city? Wouldn't the real estate attorney have much better/faster/more accurate luck and know just whom to contact, what questions to ask, and which answers were or were not sufficient for the information you need?

RM
You can not meet the elements of an adverse possession claim by asserting a claim against yourself. You have to be making a claim of legal ownership of the land based on possessing the land of another person for the statutory required period of time and under certain conditions (such as open and notorious, etc.)
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Re: Deck on setback- violation?

Post by adamthesmythe »

Ani wrote: Tue Jul 07, 2020 8:46 pm Thank you all.

I wish they would tell me now-- so that I can ask the seller to fix it or reduce the property price.

rather than tell me later-- and me worrying about demolishing the deck at my expense plus worry about someone falling on this possibly illegal non-conforming deck.
You don't need an answer and it looks like you will not get one.

If this worries you tell the seller that you need either a fix or a price reduction or you won't buy the house.
curmudgeon
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Re: Deck on setback- violation?

Post by curmudgeon »

I don't know that I'd worry about the existing deck and it's history, but might have more concern for any future work/changes. A new owner down the street from us ran into an issue like this, but more challenging. The previous owner of the property had let the decks deteriorate seriously in the last 10/15 years of ownership (they spent most of their time at their beach house). New owner bought the house knowing the condition of the decks, but not realizing that the side deck infringed on setbacks. When they went to get permits for rebuilding the decks and other work, the county wouldn't allow rebuilding that side deck because of the setback and height. Problem was that the "side deck" was really the main entrance to the house, and there weren't good alternatives. In the end, the new owner was able to fix that section by doing "less than 50%" as a "repair", and than later doing more of the structure as another "repair" (decking boards one time, and under structure another time). A pain, and additional expense, but he found a way.

Sometimes the challenge for local government building folks is they don't want to put signatures down as approving something which doesn't meet the letter of the regs, but if it is a minor issue and they don't have to officially take notice, they may be willing to "don't ask, don't tell" because they don't actually wish to create ill-will. Once they officially allow something, they then can get burned by the next guy pushing the line a bit further and using the previous exemption as a reason.

This situation wouldn't keep me from buying the house, but it would serve as warning to not consider the deck as guaranteed, especially if I later wanted to expand or remodel the house.
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Watty
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Re: Deck on setback- violation?

Post by Watty »

It sounds like the deck is at least 23 years old, possibly much older.

How much longer do you expect it to last?

If it will need to be replaced in 5 or 10 years then a big question would be if you will be able to replace it with a conforming deck that works well when it needs to be replaced anyway.
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StevieG72
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Re: Deck on setback- violation?

Post by StevieG72 »

I would pass on the deal, why deal with the headache?
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Re: Deck on setback- violation?

Post by Sandtrap »

If the city does not give you an ok for whatever reason in writing and make it legal, then a neighbor or other complainant can call in a complaint and it will have to be removed.

If the city makes an exception for you then won’t the setbacks have to be changed for your neighbors as well?

There is no impetus for the government to change what exists.

Suggest the sellers remove the deck to sell you the property or do not buy it unless you are prepared to build a new one that is legal. Hopefully, only the deck is non compliant.

Or continue paying legal counsel and see where it leads. For property setbacks, easements, and building code violations, often nowhere.

j🌺
Last edited by Sandtrap on Wed Jul 08, 2020 6:59 am, edited 1 time in total.
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barnaclebob
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Re: Deck on setback- violation?

Post by barnaclebob »

Delete
Last edited by barnaclebob on Tue Jul 07, 2020 11:44 pm, edited 1 time in total.
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Re: Deck on setback- violation?

Post by barnaclebob »

Ani wrote: Tue Jul 07, 2020 8:46 pm plus worry about someone falling on this possibly illegal non-conforming deck.
Why is this a concern? Is the deck not built to construction code? That would be a bigger issue for me than the setback violation if it cant be solved easily.
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Re: Deck on setback- violation?

Post by atikovi »

StevieG72 wrote: Tue Jul 07, 2020 10:51 pm I would pass on the deal, why deal with the headache?
Maybe because,

Hello All,
I am buying a home in NJ, my wife loves this home.
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Ani
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Re: Deck on setback- violation?

Post by Ani »

Haha.
That sums it up.


Thank you all. :sharebeer
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