Utah Real Estate:
Who Controls Property Rights and Use?
By Benjamin T. Beasley. Ben Beasley is a partner at the law firm of Freeman Lovell. His practice is focused on business, finance, and real estate law. He received his juris doctor degree from Harvard Law School.
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Real estate property rights are a fundamental aspect of life for most Americans. It may seem like it should be obvious that the owner of a piece of real estate has the right to control what happens with their property. However, as many property owners have discovered, there are many other decision makers that must be considered when thinking about what rights are available to the title holder of a parcel of real estate in Utah.
Generally speaking, the owner of real property does have the right to do with it as they wish, absent any superseding rights or right holders. But that’s the rub: there are almost always superseding rights holders and other legal issues that play in to land use. In Utah, there are several key places that an owner of real estate should look to determine what issues may arise and what rights he or she may actually possess.
Real estate rights are often compared to a bundle of sticks. Each stick in the bundle represents a certain right associated with the real estate – for example, one stick could be the mineral rights; another stick could be right to cross a certain portion of ground; another stick could be a utility easement; another stick could be for a canal; another stick could be an existing purchase option; another stick to be development rights or restrictions. In reality, there is an almost infinite number of ways to divide up rights to real property. Considering what “sticks” may have been granted, sold, or otherwise taken is an excellent first step in considering what an owner of real estate can do with their property.
Rights that have previously been sold or granted to a third party
Just because a person has a deed to a certain parcel of ground or a dwelling does not mean that they possess every single right related to that property. In fact, it is virtually certain that a number of rights were previously transferred away from the deed holders in the chain of title leading to the current owner. These are usually recorded in county real property records. If a prior owner of title transferred away a right (for example, by granting an easement to a third party), then the subsequent owners of the property would not receive that right – the title to that right would remain with the person or entity that received it, and they may have transferred that right on to other rights holders. One very typical example is utility easements: nearly every parcel has granted to utility companies the right to enter the property, maintain utility lines, and/or prohibit destruction or impediment of lines or building on them. Those rights thus encumber the real property and normally remain with the utility company, and can be passed on to its successor companies.
Many, many other rights are often typically granted over time. The easiest way to discover these is to perform a title search and then review the documents to see exactly what has been recorded against the property.
Land use authorities
Governmental bodies have rights over real estate within their jurisdictions, and can make decisions that have extreme effects on property owners. Land use authority in Utah means “(a) a person, board, commission, agency, or body, including the local legislative body, designated by the local legislative body to act upon a land use application; or (b) if the local legislative body has not designated a person, board, commission, agency, or body, the local legislative body.” Utah Code § 10-9a-103(24). This is where laws like zoning codes come from.
Use laws are designed to prohibit certain uses in some areas, while encouraging other uses, and have developed over time. For example, an owner of residential real estate in a neighborhood may be prohibited from using the property for heavy industrial uses that would harm the ability of other landowners to have quiet enjoyment of their land.
Land use authorities take different forms in different local governmental organizations. In municipalities, the city council is typically the authority. In counties, it is the county commission. But these often delegate their authority, or there may be a different one altogether, such as a planning commission, legislative body, or another designated body. This can also change depending on what type of decision is to be made or how local ordinances are structured. Reviewing city or county codes, and Utah state law, is typically a good first step in determining who has jurisdiction, how they exercise that jurisdiction, and what land use authority will make decisions.
The initial decision is made by the land use authority, often with input from local government staff and personnel. Appeals can usually be made if the decision of a land use authority is not in line with that requested by a landowner. Under Utah law, “’Appeal authority’ means the person, board, commission, agency, or other body designated by ordinance to decide an appeal of a decision of a land use application or a variance.” Utah Code § 10-9a-103(2). This is normally a board of adjustment. Once administrative remedies have been exhausted (i.e., all steps provided for in appeals within the land use authority), a landowner may appeal to state court: first, district court, and it also has its appeals process, the Court of Appeals and then the Supreme Court. However, each appeals step is less likely to grant the request of the property owner, so he or she should do everything they can to get a ruling in their favor at the first step.
Enlist a Utah Real Estate Attorney
Our deep Utah real estate law knowledge can help you with all aspects of your real estate needs. Whether you are seeking to buy, sell, develop, or research real property in Utah, or have a dispute with another person or entity, we are available to discuss your options and answer your questions at an initial free, thirty minute consultation. Call us at (801) 477-6838 for a free consultation. You can also email Ben at , fill out a contact form below, or set up an appointment to meet at our offices. We look forward to helping you.