Non-Conforming Structures: What You Need to Know BEFORE Buying a Property 

Over time, municipalities change zoning requirements to help them achieve their goals.  For example, in Norfolk, VA in the early 1900s much of the development included two-story duplexes, which, after 100 years of development, resulted in pockets of very high population density. In order to reduce the population density in certain neighborhoods, such as Berkley and Park Place, Norfolk changed the zoning from allowing both duplex and single-family homes, to only allowing structures to be used as single-families.  When this zoning change became official, the city gave all duplex structures which no longer conformed to current zoning a conditional use permit, which allowed them to be grandfathered in as a duplex. The zoning rule states that once a grandfathered structure stops being used in the non-conforming usage, in this case a duplex, for at least two years, the building loses the non-conforming exception, and must be converted to the current zoning requirements, which in this case means a single-family home. 

There are several scenarios that will cause a non-conforming duplex to lose the exemption status.  The most common we see is a duplex that becomes vacant and ends up in foreclosure, which just extends the vacancy period. The lack of utilities triggers notification to the city that the units are vacant.  Even if one unit is occupied with utilities on, if the second unit fails to have utilities in for at least two years, the structures is considered to having been used as a single-family residence, and thus, the conditional zoning status would be lost.  The grandfathered status is granted for the structure, not the lot, and if the building is demolished only a structure that meets current zoning will be permitted. 

As you can imagine, finding out after you purchase a property that you had intended to use as a duplex to add to your rental portfolio that you now have to convert this building to a single family home, would put quite strain on your budget.  What may have been a $20,000 rehab budget could easily turn into an $80,000 rehab budget, making the project no longer financially viable. 

Each of our 7 cities in Hampton Roads, VA has an interactive website that the public can enter an address to look up the current zoning.  (See each of these links in the chart below.) To save yourself from losing earnest money, create a contingency in your standard purchase contract that allows you to terminate the contract if it is determined that the city will not allow the structure to remain in the usage for your desired purpose. Virginia is a buyer beware state, which means sellers have very few required disclosures.  It is the buyer’s responsibility research any pertinent data that may be important to their purchase decision, including compliance with current zoning. 

Don't make the $200K+ mistake other real estate investors and landlords have made! Always check the zoning if any property you intend to buy to determine if it meets the current zoning requirements.  If it does not meet the current requirements, call the municipality’s permit office to inquire whether the structure still has a non-confirming exemption and if or when that non-conforming status is scheduled to expire.  This is public information, and the permit department will share it with prospective purchasers.