Through my practice in real estate and land use on the East End of Long Island over the last 42 years, primarily in the Towns of East Hampton and Southampton and their respective incorporated Villages (commonly known as “the Hamptons”) I have come to realize that there are recurring land use issues in the context of real estate transactions. Set forth in this article is a discussion of the ten most common of these issues.
1. Finished Basements
One of the most common land use issues is the presence of a finished basement. More often than not, a homeowner seller has finished a basement without getting the required certificate of occupancy (CO) from the local municipality. The reason the sellers hasn’t received a CO is either because she hasn’t sought one or she is ineligible for one because when she finished the basement she didn’t install the proper ingress and egress. For safety reasons, the New York State Building Code R.301.1 dictates that there be proper ingress and egress in a finished basement to allow for safe evacuation in case of fire. Proper ingress and egress comes into play when living areas and sleeping areas are broken into separate rooms. The way a purchaser can make sure that the finished basement is legalized prior to purchase is to make sure that their purchase contract includes a requirement that the seller obtain an updated CO prior to closing.
2. Number of Bedrooms
Most houses in the Hamptons were constructed with three bedrooms which under Health Department regulations requires a septic system that can accommodate 1,000 gallons. But what frequently happens is that homeowners convert one or more rooms to additional bedrooms, bringing the count of bedrooms to 4 or 5 or more. An alert building inspector renewing the property for an updated certificate of occupancy may cause a house to fail inspection when she discovers that the house is using more bedrooms than what the Health Department approval allows the existing septic system to accommodate. The remedy for this is to discontinue the use of the extra bedrooms, or alternatively, apply for and install a larger sized septic system.
3. Encroachments
We always advise our clients on a purchase to obtain an updated survey. There are several reasons for this but one of the most important is to identify any encroachments defined as improvements, which can be either structures or clearing and use of land, that extend onto the property that the purchaser is buying from a neighboring property. These can include a shed that crosses the boundary line, a fence in the wrong location or even a cleared lawn area that extends into the property being purchased. When these are identified on a survey, and in order to satisfy the title company who the purchaser is purchasing title insurance from, the burden is put on the seller to have these encroachments removed or an agreement signed by the encroaching neighbor that they make no adverse possession claim to the encroached area.
4. Structures Without Permits or CO’s/Illegal Guest Houses, Tennis Courts and Pools
An issue that pops up frequently is the existence of accessory structures that may have been installed without knowing, or disregarding, the requirement of obtaining a building permit and a CO. A related issue is the existence of open building permits for unfinished work. In all of the municipalities of the East End a building permit and CO is required for almost all structures that have a roof, plus decks, pools and playing courts. Some very small sheds are exempted in some of the municipalities. When a building permit is required for a structure, the structure must meet all setbacks set forth in a municipality’s zoning code. While fences and driveways are usually exempted, a deck, or shed must meet specified setbacks and are often limited in size and height. Greater setbacks usually apply to the larger noise generating structures like a swimming pool or tennis court. The relevant zoning code should be consulted before any of these structures are installed, or if you are buying a home with those structures.
Also, the current trend towards pickle ball courts should be monitored. The noise generated from pickle ball courts is said to be greater than tennis courts, which many municipalities require double setbacks for. Some municipalities have enacted new regulations about these specific types of courts but at the very least, municipalities will treat them as tennis courts and require the same substantial setbacks.
Another accessory structure issue to be aware of is the illegal “guest house.” Almost all of the municipalities outlaw a residential structure that has cooking facilities and/or sleeping facilities that is not part of the main residence on a property. However, many homeowners have converted pool houses, playhouses, sheds, etc. to guest quarters to allow sleeping and some cooking. Although legal pool houses are allowed to have plumbing, i.e. a toilet, sink and/or a shower, none of the municipalities allow a second structure with a kitchen, plumbing, electric and sleeping facilities without exceptional permits.
5. Over Clearing
Both the Towns of East Hampton and Southampton have limitations on the percentage of a building lot that can be cleared of natural vegetation. The Town of East Hampton has clearing limitations that are relevant throughout the Town. Southampton Town only has clearing requirements in certain districts. One problem that developed over the years is that some of the Towns, when clearing restrictions first came into existence, were not strictly enforcing the requirements or taking them into account when issuing certificates of occupancy. As a result, some old COs were issued, after the regulations were enacted, for properties that had been over cleared. Nowadays, the Towns ask for surveys that include a clearing calculation so that a CO can’t be issued for an over cleared lot, but purchasers need to be aware that an old CO may not take into account that the property is over cleared. When purchasing a property an updated survey showing the amount of clearing should be obtained and in the contract of sale a seller should be required to replant areas that are over cleared. Both Towns have lists of indigenous vegetation and density requirements for the revegetation plan to be worked out with Town Officials and implemented in order for a lot to be legalized.
6. Rental Permits
Both the Towns of East Hampton and Southampton and the Villages of East Hampton, North Haven, Southampton, Quogue, Westhampton Beach, and Westhampton Dunes have rental permit requirements. That means that a property cannot be rented out without acquiring a permit from the municipality. Several of the municipalities also have requirements prohibiting or limiting short term rentals. If you are buying a house in the Hamptons and it is your intention to rent it out when you are not using it, you should be aware of the requirement of obtaining a permit and what the requirements are to obtain a permit. The requirements usually include obtaining an updated CO so it is clear that all the structures and buildings on the property are legal and up to code.
7. Common Driveways
It is not unusual in East Hampton and Southampton to share your driveway with a neighbor. Many subdivisions were created that allowed the existence of “flag lots” or properties where the bulk of the lot is not fronting on a road but is connected to a public road by a “flagpole” strip or easement. In these instances, the houses that take access to the public road along the common driveway all have the right to use the common driveway. However, often times the obligation to maintain and repair the common driveway and the requirements for consent of all users of the driveway on maintenance decisions and their relative contributions to the costs of maintenance are not fully spelled out. A title search prepared prior to the purchase of a house with a common driveway should uncover what, if any, agreements are recorded regarding a common driveway.
8. Beach Access Easements
As coastal communities, the municipalities of the Hamptons have very desirable waterfront properties. They also have a significant number of public beaches. However, there are long stretches of beach that are not strictly owned by a homeowner nor are they part of publicly maintained beaches. Numerous properties that are not on the waterfront have beach access easements over other properties so that the owners of the property can walk to the beach. If a property you are buying is advertised as having beach access, it is important to verify that prior to your purchase if it is considered an important reason for your purchase and integral to the value built into the price you are paying. Beach access easements will vary in their width and their limitations and in almost all instances allow the users to clear the easement of structures and vegetation to make the easement accessible. Often times this will result in friction between neighbors where the owner of the servient estate (the property over which the easement traverses) does not fully understand the rights of the easement holder to cross the property and to clear the path to the beach.
9. Wetlands Setbacks
Because the Hamptons municipalities are all coastal communities, they generally all regulate where development can take place relative to wetlands. The ecological values of wetlands are understood and accepted and to mitigate the impact to those values, municipalities require structures and activity to be set back at certain distances. If you are purchasing property containing or near wetlands, you should have the wetlands depicted on a survey so that you can determine whether any further development will be permitted on your property given the required wetland setbacks or whether variances would be required.
10. Building Size
An issue that has come to the fore in the last twenty years is the size of residences and accessory structures. Because of the prevalence of larger homes and expansive accessory structures, more and more of the Hamptons municipalities have placed limits on the amount of square footage that can be in primary residences and accessory structures. If it is your intent to add an addition to your home or additional accessory structures to your property you should be aware of the limitations of square footage, which in most cases are a function of lot size. You should consult with the zoning code and the building department in your municipality to determine to what extent these square footage limitations will impact your ability to build.
These issues are the ten most likely land use issues to come up in a Hamptons real estate transaction and something every potential seller and purchaser should be aware of. Our firm is uniquely suited, based on over 50 years of experience in the Hamptons market, to deal with these issues and to make sure sellers and purchasers are protected in any transaction.
