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Lonon Law Firm, LLC
P.O. Box 1984 (29304)
134 Oakland Avenue
Spartanburg, SC 29302 |
| Telephone: (864) 327-1764 |
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| Fax: (864) 327-1762 |
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Zoning laws determine how your land may be used. They serve the purpose of keeping property uses within a particular area uniform. Typical zoning categories for property use are: residential, commercial, industrial, agricultural, and recreational. These categories can be further broken down into sub-categories such as: “single family residential use.” Zoning laws are often times very specific and can dictate the size, location, and use of structures on property. For instance, they may protect residential areas from the disruption of commercial or industrial activity.
Through obtaining a variance, you may be able to change the zoning on a piece of property. A variance is permission to depart from the requirements of a zoning ordinance. In Spartanburg, the Board of Zoning and Appeals has the authority to grant or deny variance applications. (The City of Spartanburg has an application on their website.) In order to have a variance application approved, an interested party must show: (1) there are extraordinary and exceptional conditions pertaining to the particular piece of property; (2) these conditions do not generally apply to other property in the vicinity; (3) because of these conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property; and (4) the authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will not be harmed by the granting of the variance. City of Spartanburg Zoning Ordinance § 603.3(A)(2); S.C. Code Ann. § 6-29-800(A)(2) (Supp. 2010). In order to grant a variance, the Board must make the factual determination that each of these four elements favors granting the variance. Restaurant Row Assocs. v. Horry County, 335 S.C. 209, 215, 516 S.E.2d 442, 445 (1999). “Granting a variance is an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions.” Id. at 215, 516 S.E.2d at 445-46.
In Black v. Lexington County Board of Zoning Appeals, 396 S.C. 453, 722 S.E.2d 22 (Ct. App. 2012), the South Carolina Court of Appeals affirmed a Board’s decision to approve a variance application. It is important to note that the standard of review on appeal favors affirming a board’s decision. In fact, a municipal zoning board’s decision will only be “overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion.” Id. at 458, 722 S.E.2d at 25. The purpose for such a high standard of review is that the zoning board is deemed to have been in the best possible position to hear firsthand testimony and ascertain all of the facts.
A few weeks ago I posted on some of the duties and responsibilities encompassed within the Residential Property Condition Disclosure Act (“the Act”), along with some of the ramifications for violations. I have had some responses to the post, so I have decided to further the discussion to note some other interesting aspects of the Act as well as provide a little information on my take of a somewhat recent opinion dealing with this issue.
As I wrote earlier, an owner/seller is required to make certain disclosures before a closing on residential property to a buyer. (A link to the most recent form promulgated by the South Carolina Real Estate Commission is below.) The requirement also applies to leases with an option to purchase. S.C. Code Ann. § 27-50-20 (3). Even listing agents have certain duties with regard to making sure the owners/sellers know their responsibilities under the Act. S.C. Code Ann. § 27-50-70. The Act does not just provide that the owner/seller has the duty to complete the disclosure form. It also provides that the buyer has a duty to reasonably inspect the property. S.C. Code Ann. § 27-50-80. If a buyer fails to reasonably inspect the property, then he or she likely waives his or her right to get relief under the Act if the seller’s misrepresentation could have been discovered.
In Coake v. Burt, 391 S.C. 201, 705 S.E.2d 453 (Ct. App. 2010), the Court of Appeals gave guidance as to how disclosure cases will likely be tried in the future. In this case, the owner/seller of residential property (Burt), who admittedly did not read or understand her duties under the Act, made certain representations about the home she was selling to the Coakes. Before the closing, Mr. Coake spent approximately one or two hours personally inspecting the property. The Coakes also hired a professional to inspect the property but admitted that they did not get the report until after the closing. After the closing, the Coakes found there were several defects in the property ranging from underground storage tanks to rotten wood that were not disclosed by Burt on the form. The Coakes sued Burt for false representations she made on the disclosure form she signed prior to the closing. The trial court directed a verdict for Burt, finding that the Coakes did not reasonably inspect the property pursuant to section 27-50-80. The Court of Appeals reversed, holding that whether or not the Coakes conducted a reasonable inspection of the property was a question of fact for a jury. The Court did not give any guidance as to when an inspection is reasonable; however, it must be assumed that what is “reasonable” is an objective analysis for a jury.
Another prerequisite for triggering liability under the Act is that the false representation or failure to disclose must be material. Simply put, a failure to disclose a defect in property is not material unless it would be a “deal breaker” to a reasonable person. Of course, it makes sense that failure to disclose minor defects should give less cause for concern than major defects that are costly to repair, especially since the cost of repairing certain items is a common issue that arises during price negotiations. In any event, since the Court in Coake confirmed that the question of whether an inspection by a buyer is reasonable is a question of fact for a jury, it is likely that would also be the proper analysis for issues involving the materiality of a failure to disclose defects.
The form promulgated by the Commission can be found at http://www.llr.state.sc.us/pol/rec/RECPDF/DOC360.pdf.
Lonon Law Firm has an immediate need for a paralegal assistant to assist with its busy, growing practice. This is an entry level position for a detail-oriented, presentable, well-spoken, professional interested in learning to be a real estate paralegal from the ground up. Previous experience in the real estate industry, along with an associate or bachelor degree in paralegal studies or other major is preferred but not required. A high school diploma, previous administrative experience and computer proficiency is required, along with reliable transportation.
Common tasks will include assisting our attorneys and real estate paralegal with reviewing real estate contracts, coordinating due diligence for commercial and residential real estate transactions, assistance with issuance of post-closing documents including final title insurance policies, organization of files, preparation of limited title abstracts, preparation and filing of legal documents including deeds and mortgages, etc., preparation of closing checklists and coordinating the closing process for transactions, drafting estate planning documents, and limited travel for recording of documents.
Please email a cover letter and resume to jlonon@lononlawfirm.com. No phone calls please.
Nearly one year ago, the South Carolina Supreme Court created a foreclosure intervention process. Administrative Order Re: Mortgage Foreclosure Actions, 2011-05-02-01 (May 2, 2011). The intervention order requires lenders to inform borrowers of their right to seek loan modification or other loss mitigation prior to pursuing foreclosure. South Carolina Supreme Court Chief Justice Toal hoped this process would lessen the burden on the courts from pending and unresolved foreclosure actions while at the same time keeping homeowners in their homes if possible. It ensures that foreclosure is the last option rather than the first when a homeowner cannot pay his or her mortgage.
RealtyTrac Inc., is reporting that foreclosure filing numbers are up by 26% in South Carolina since the first quarter of 2011, while foreclosure filings for the nation as a whole fell to their lowest level since 2007. According to RealtyTrac, states with judicial oversight had increases in filings, while the largest decreases were seen by states with no judicial oversight. At first glance, it does not seem that the Chief Justice’s intervention is having the effect she had hoped, but perhaps it is too soon to tell. The two states with the largest decreases in filings (Arkansas and Nevada) passed laws this year that disrupted the normal foreclosure proceedings. This is similar to what happened last year when judicial oversight states had bigger decreases in filings from intervention delays. Some industry experts are suggesting the judicial interventions resulted in backlogs that are showing up in foreclosure increases now. Thus, these 2012 first quarter foreclosure numbers are likely misleading, and the statistics may be more correlated to government interventions than the health of the housing economy.
One of the latests records set by the real estate market crash is the number of churches that have quietly succumbed to foreclosure. During the real estate boom in the early 2000s, just like individuals, churches took advantage of lenient lending rules. New, modern sanctuaries popped up all over the country. Unfortunately, as congregants’ finances go, so do their churches’ finances. Record unemployment set in, bringing financial distress to many families. Offerings plummeted and many churches struggled with mortgage payments and some eventually defaulted.
According to Reuters, in 2011, a record 138 churches were sold in foreclosure proceedings. While in 2008, only 24 churches were sold. In the entire preceding decade, only a handful of church real estate was lost to foreclosure.
Unlike residential mortgage loans that typically require 30 years of payments, many mortgages to churches are commercial mortgages that mature after 5 years. At maturity, a large balloon payment becomes due. If a church is unable to make the balloon payment, it will try to restructure the loan. This has proved problematic because the value of the mortgaged real estate significantly dipped in the years following it original appraisal.
So what happens when a church loses its building in foreclosure? In some cases the bank will lease the building back to the church, allowing its members to continue to hold services on the property—at least until the bank finds a buyer. In other cases the church relocates temporarily to an empty retail space in a strip mall or a school auditorium.
Eventually the bank is able to sell the foreclosed property to another church at a bargain-basement price. As for the displaced congregation– the good news is that the nature of a faith-based organization leads its pastor and congregation to look optimistically to the future. Johnny Zapara, pastor of the Vineyard Christian Fellowship in Sacramento whose building went into foreclosure in 2011, summed up the feelings of many congregations who find themselves in foreclosure: “A building does not make a church. We will find a way to continue.”
Posted in Banks, Churches
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(864) 327-1764
