Preexisting Use

Preexisting Use Explained

Preexisting Use, also known as Nonconforming Use, denotes the continuing use of land or buildings in a way that was legally established according to previous zoning ordinances but no longer conforms to current zoning laws. This situation often occurs when zoning regulations are amended or updated, making some current uses of property noncompliant with the new regulations.

Key Points:

Legality: The use must have been legal before the change in zoning. If the use was illegal before the change, it cannot be considered preexisting.
Grandfathering: These uses are often “grandfathered” in, meaning they’re allowed to continue even though new regulations would prohibit them.
Limitations: Changes to the property (like expansion) may not be permitted. Major damage to the structure may require compliance with new zoning laws.

Examples of Preexisting Use

Industrial Facility in a Residential Zone: An industrial factory has been operating in a neighborhood that, under previous zoning laws, supported both industrial and residential uses. If the zoning laws change to residential-only, the factory can continue operating but cannot expand or significantly alter its operations.
Retail Store in a Newly Residential-Only Area: A small retail store in an area newly designated as residential can continue to operate under its preexisting use status. Still, if severely damaged in a fire, new construction might have to comply with residential zoning laws.

Frequently Asked Questions (FAQ)

What happens if a preexisting use property is sold?

When a property with a preexisting use is sold, it generally retains its nonconforming status if the use continues unchanged. However, local regulations may vary, and buyers should consult with local zoning authorities.

Can a preexisting use be expanded?

Typically, expanding a nonconforming use is not allowed under zoning laws. Any modifications often require an exception or variance from local zoning boards.

Is it possible to lose preexisting use status?

Yes, depending on local statutes. A property can lose its preexisting use status if the use is discontinued for a certain period or if the building is significantly altered or rebuilt.

How can someone find out if a property has preexisting use status?

Consult local zoning maps and records, or contact the zoning department of the local municipality. Documentation of the use before zoning changes is often required.

Zoning: Regulations that delineate how properties in specific geographic zones can be used.
Nonconforming Use: Continued property use that was legal before new zoning laws but does not conform to the new regulations.
Grandfather Clause: A provision allowing exemptions from new regulations for existing conditions.

Online Resources

References and Suggested Books

“Land Use Controls: Cases and Materials” by Robert C. Ellickson, Vicki L. Been, Roderick M. Hills Jr., Christopher Serkin.
“The Zoning Board Handbook” by Alexander D. Mendelson.
“Zoning, Rent Control and Affordable Housing” by William A. Fischel.

Real Estate Basics: Preexisting Use Fundamentals Quiz

### Can a property continue its existing use even if it's zoned differently now? - [x] Yes, if it was legally established before the zoning change. - [ ] No, it needs to comply with new zoning laws. - [ ] Only in rural areas. - [ ] Only with new construction. > **Explanation:** If a property’s use was legally established before a zoning change, it can continue its use under the "grandfathering" provision even if it no longer complies with current zoning laws. ### What must preexisting use properties ensure not to lose their status? - [ ] Regular renovations. - [x] Consistent use without significant alteration. - [ ] Obtain a new building permit annually. - [ ] Reapply for zoning regularly. > **Explanation:** Properties must ensure they maintain consistent use without significant alterations or discontinuous use, as doing so can lead to losing their preexisting use status. ### What is an example of preexisting use? - [ ] A recently built commercial complex in a commercial zone. - [x] A residential house in an area now rezoned for commercial use only. - [ ] A non-compliant structure built without a permit. - [ ] An authorized extension to an existing structure. > **Explanation:** A residential house legally built in an area that has now been rezoned to commercial use only represents a preexisting use. ### Which term is synonymous with Preexisting Use? - [ ] Permitted Use - [ ] Conditional Use - [x] Nonconforming Use - [ ] Exclusive Use > **Explanation:** Nonconforming Use is synonymous with Preexisting Use, as it describes a use that does not conform to current zoning laws but was lawful previously. ### What happens if a preexisting use structure is destroyed by a natural disaster? - [ ] It can be rebuilt under the old zoning laws. - [ ] It can be rebuilt anywhere. - [x] It may need to comply with current zoning laws. - [ ] It's automatically de-designated. > **Explanation:** Generally, if a preexisting use structure is significantly damaged, rebuilding must comply with the current zoning laws. ### Who can provide definitive answers regarding a property's preexisting use status? - [ ] The real estate agent - [x] Local zoning department - [ ] The property seller - [ ] Any legal professional > **Explanation:** The local zoning department or appropriate municipal authority provides definitive answers about a property's preexisting use status. ### How are nonconforming uses generally treated under new zoning laws? - [ ] They are immediately prohibited. - [ ] They are given priority. - [ ] They are ignored. - [x] They are allowed to continue but not expand. > **Explanation:** Nonconforming uses are allowed to continue under new zoning laws but generally cannot be expanded or extensively modified. ### Can preexisting use benefits be transferred to new owners? - [x] Yes, typically they can. - [ ] No, they are non-transferable. - [ ] Only if the new owner applies for it. - [ ] Only in residential zones. > **Explanation:** Preexisting use benefits typically transfer to new owners as long as the use of the property remains consistent. ### Which amendment principle may support preexisting uses? - [ ] Second Amendment principles. - [ ] Fifth Amendment rights. - [x] Grandfather Clause. - [ ] Fourth Amendment rights. > **Explanation:** The Grandfather Clause principle often supports the rights of preexisting uses to continue despite new zoning regulations. ### How can one check the zoning regulations affecting a property? - [ ] Guess based on the neighboring properties. - [ ] Refer to historical property deeds. - [x] Check with the local zoning department or municipal records. - [ ] Ask previous owners. > **Explanation:** The local zoning department or municipal records can provide the official zoning regulations affecting a property.