Guidelines: ALTA Endorsement 3.3-06 (Zoning - Completed Improvement - Non-Conforming Use) (12-01-18)

Explanation:

This endorsement to the Loan Policy or Owner's Policy is designed for issuance on Land improved with an existing building where there is known non-conforming use.  This endorsement insures against loss or damage if a specified non-conforming use is not allowed because it violates a municipal or county zoning ordinance or zoning regulation.  In addition, this endorsement insures against a final court order either prohibiting the present non-conforming use or requiring removal or alteration of the existing building because the non-conforming use violates a zoning ordinance or zoning regulation as to: (i) area, width or depth of the Land as a building site for the building, (ii) floor space area of the building, (iii) setback of the building, (iv) height of the building, or (v) number of parking spaces.

Underwriting Requirements:

(1) Obtain and review a written certification from the applicable zoning department or agency as to: (a) the zoning classification and authorized use of the existing building based upon the zoning ordinance and/or the applicable exception, variance or prior authorized non-conforming use, etc., (b) compliance of the existing building with the zoning ordinance or based upon the applicable exception, variance or prior authorized non-conforming use, etc., and (c) compliance with the zoning ordinance or the applicable exception, variance or prior authorized non-conforming use, etc. as to number of parking spaces.  We prefer that the letter from the zoning department or agency state that, based upon the zoning ordinance or the applicable exception, variance or prior authorized non-conforming use, etc., the existing building complies with: (i) area, width or depth of the Land as a building site for the building, (ii) floor space area of the building, (iii) setback of the building, (iv) height of the building, and (v) number of parking spaces.

(2) Obtain and review a copy of the applicable zoning ordinance and the applicable exception, variance or prior authorized non-conforming use, etc.

(3) If possible, require that the survey and/or architect state the applicable zoning classification and number of parking spaces and state that, based upon the zoning ordinance or the applicable exception, variance or prior authorized non-conforming use, etc., the existing building complies with: (a) area, width or depth of the Land as a building site for building, (b) floor space area of the building, (c) setback of the building, (d) height of the building, and (e) number of parking spaces.

(4) In Paragraph 2(a) of the Endorsement, insert/describe the existing non-conforming use.  We prefer that Paragraph 2(a) of this Endorsement refer to the “following Non-Conforming Use” by excerpting specific language from the applicable exception, variance, etc. that authorizes the non-conforming use.  We prefer if the description does not state specific numbers of units, floors or square footage.

(5) If the applicable variance, exception, etc. requires the prior continued use of the building in a particular manner, obtain STG Non-Conforming Structure Affidavit from the seller/borrower, unless otherwise approved by a Stewart Title Guaranty Underwriter.

(6) If you are unable to obtain confirmation of compliance with any of Items (i) – (v) in Paragraph 2(b) (e.g., parking, etc.), you should delete such item(s) before issuing this endorsement.

(7) This endorsement requires approval of a Stewart Title Guaranty Company Underwriter.

The underwriting guidelines contained herein have been provided for general reference. The facts, circumstances, and location of the subject property should be considered when determining the issuance of the requested form or endorsement. Please note that all of the forms and endorsements included in this system may not be available in all states. Accordingly, please contact the appropriate Stewart Title Guaranty Company underwriting personnel in order to determine availability.

Compliance with the underwriting guidelines contained herein in no way obligates Stewart Title Guaranty Company to issue any form or endorsement.