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Thread: Property under contract - is additional permission from owner needed?

  1. #1
    Cyburbian
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    Property under contract - is additional permission from owner needed?

    We had a man apply for a special use permit for a property that is under contract. The contract includes the general "study period" clause, but does not specifically say he can pursue a special use permit. However, my interpretation is that the contract gives him a vested right to apply for a special use permit on the property since that is one of the factors that is necessary in order for him to utilize the property.

    The issue has now been raised over whether he needs explicit permission from the seller of the property in order to authorize him to move on the request. My interpretation has always been that the contract is what gives him the permission from the selling property owner. But it's now been raised as a huge issue since the property does not have any access to a state road and must utilize a private easement for access. The guy wants to do a primitive campground on the property for groups of up to 50 people 4 to 6 weekends a year. I really did not foresee that this would become as huge of an ordeal as it was.

    Thoughts?

  2. #2
    Cyburbian MD Planner's avatar
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    I would require an owner's affidavit. That way you're covered.
    He's a planner, he's a dreamer, he's a sordid little schemer,
    Seems to think that money grows on trees . . .

  3. #3
    Cyburbian AG74683's avatar
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    A contract to purchase is an entirely civil matter. He's not legally the property owner. I would require an owner's affidavit to proceed.

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    Cyburbian Raf's avatar
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    We require an owner affidavit and/or property owner signature to proceed with the application.
    No Signature Required

  5. #5
    Cyburbian
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    Interesting. Okay. My previous employer told me that a purchase agreement was sufficient, so it was just the way I had been operating. It never occurred to me to run it by our attorney, but it sounds like I probably should.

  6. #6
    Cyburbian dvdneal's avatar
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    I've always used the owners signature or some contract signed by the owner that gives rights to apply/modify the land. About the only time I see contracts are when I handle cell companies. I've also had one where the guy had the purchase contract contingent on getting zoning, but when in doubt, get the owner to sign.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  7. #7
    moderator in moderation Suburb Repairman's avatar
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    A good real estate professional would have built that specific permission into the purchase contract with an authorization for the buyer to act on the owner's behalf.

    Get the affidavit.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  8. #8
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    Municipality should request a letter of authorization from current owner to allow the potential to proceed within any land use action

  9. #9
    Unfrozen Caveman Planner mendelman's avatar
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    We also require the property owner's signature on the application form for the request.

    Our code doesn't explicitly require this, but it's a good practice so that everyone's (theoretically) aware of what's happening.

    Also, consult your attorney if you must, but I wouldn't. At a minimum I'd consult my direct boss to make them aware.
    I'm sorry. Is my bias showing?

    Every day is today. Yesterday is a myth and tomorrow an illusion.

    You know...for kids.

  10. #10
    Cyburbian
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    This situation will self-correct since the applicant has already expressed his intention to withdraw the request. But it is something I would like to get sorted out so it doesn't become an issue in the future. I agree with SR, though - typically, the contracts that have been supplied in the past expressly discussed applying for zoning changes or special use permits. I feel fairly comfortable that the study period language covers this as well, albeit much more generally, but it's not something the Planning Commission seemed to be comfortable with, and I don't want to do anything that undermines their trust in me.

  11. #11
    Cyburbian AG74683's avatar
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    Quote Originally posted by gtpeach View post
    This situation will self-correct since the applicant has already expressed his intention to withdraw the request. But it is something I would like to get sorted out so it doesn't become an issue in the future. I agree with SR, though - typically, the contracts that have been supplied in the past expressly discussed applying for zoning changes or special use permits. I feel fairly comfortable that the study period language covers this as well, albeit much more generally, but it's not something the Planning Commission seemed to be comfortable with, and I don't want to do anything that undermines their trust in me.
    In my eyes, I'm not an attorney nor am I legally qualified to review or comment on private purchase contracts. I personally couldn't care less what's in the contract, I want the affidavit.

  12. #12
    Cyburbian MD Planner's avatar
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    Quote Originally posted by AG74683 View post
    In my eyes, I'm not an attorney nor am I legally qualified to review or comment on private purchase contracts. I personally couldn't care less what's in the contract, I want the affidavit.
    Amen. This is really a no-brainer. If someone other than the owner wants to make application, make sure there is an agent authorization form or affidavit or whatever you wish to call it. Think of it this way, just because a contract of sale says the contract purchaser can pursue some sort of zoning issue doesn't meant that EVERYTHING the buyer might want to do is ok with the seller. Since approvals run with the land what if something is granted, the contract falls through and now the owner has to deal with something maybe he didn't want to?
    He's a planner, he's a dreamer, he's a sordid little schemer,
    Seems to think that money grows on trees . . .

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