Set-Back Violations

From time-to-time, we are asked to provide coverage over a violation of the set-backs. Such violations cover the gambit; front, side and rear set-backs.  So. . .what can we cover and under what circumstances?  The first issue to explore is the question of what constitutes a “violation”?  Generally speaking, the abode itself must be encroaching over the set-back line for there to be a “violation”.  That generally rules out any out-buildings, like unattached garages, storage sheds and pool houses.  That would also generally exclude other structures, such as pools, patios, HVAC pads, fences, walls and the like.  Lastly, it is not likely a violation if the obstruction is an uncovered/unenclosed deck or porch, as those structures generally do not constitute a portion of the abode itself.  Now. . .all of this is subject to any definitions or other language contained within the Covenants and Restrictions (CCR’s) for the subdivision where the property is located.  At the end of the day, the CCR’s will control in determining what is or is not an “encroachment” into the set-back(s).

Setting aside the other kinds of structures described above, what if the abode itself is encroaching on the set-back?  NCGS 1- 50 establishes a six (6) year statute of limitations “for an injury to any incorporeal hereditament.”  Incorporeal Hereditaments is defined by Black’s Law Dictionary as (Yes. . .I still use the Black’s Law Dictionary I purchased as a 1L):  “Anything, the subject of property, which is inheritable and not tangible or visible.  A right issuing of a thing corporate (whether real or personal) or concerning or annexed to or exercisable within the same.  A right growing out of, or concerning or annexed to, a corporeal thing, but not the substance of the thing itself.”  The ability to enforce a violation of a set-back is “incorporeal” in that it is a right, enforceable by others, to control the way that someone else’s land is used.  If a person is going to enforce this right against a land owner – by right, I mean the ability to force uniformity upon the owners in a particular subdivision – it must be done within six (6) years.  Since that right becomes unenforceable after six (6) years we are generally willing to provide forced removal coverage for a buyer.  If we obtain sufficient proof that the violation is older than six (6) years, we will identify the violation in the survey exception of the owner’s policy and include certain language insuring over the violation.  The result will look something like this:

The Company insures against loss or damage incurred by the Insured by reason of the forced removal of the encroachment by final order of a court of competent jurisdiction.

One more point, and this is critical, while we are potentially able to insure violations of set-backs established by the CCR’s and/or the subdivision plat, we cannot insure violations of set-backs established by the Zoning Ordinance.  Our basic policy does not insure matters related to Zoning.  Violations of the set-backs established by Zoning can only be cured by a waiver issued by the local municipality.  And while our Enhanced Policies do have coverages for matters related to zoning, we cannot issue an Enhanced Policy if we know there is a current violation.

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