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In General

  • Real estate law covers a variety of topics, including zoning and building permits, boundary disputes, purchase and sales agreements, deeds, deeded rights and restrictions, planning and development, landlord and tenant matters, and evictions.

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Below is general information about select real estate law topics.

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Zoning and Building Permits

 

Building Permits:

  • Building codes in Rhode Island involve both state and local law. A building permit should be obtained prior to rendering any significant improvements to any real estate. Usually the appropriate contractor -- such as a general contractor, electrician, or plumber -- will meet with an official of the building inspector’s office to obtain a permit prior to commencing the job.

  • The real estate owner can also pull the permit if he or she is going to do the work.

  • Presenting a clear project plan to the building official and obtaining all necessary permits from the building inspector’s office is the best way to avoid costly delays and possible legal action.

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Building near Wetlands:

  • If the real estate is near any waterway or wetlands, or involves installation of a septic system, then approval from the Dept. of Environmental Management (DEM) may be necessary. If the real estate is near the ocean, the Coastal Resources Management Council (CRMC) may also have jurisdiction over any proposed improvements.

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Zoning Approval:

  • In addition to a building permit, a zoning approval may be required when the proposed project will result in any nonconformance to the local zoning regulations. 

  • Zoning regulations govern what types of "uses" are permitted in each zoning district, the dimensional requirements of front, rear and side yard setbacks to the lot boundary, height restrictions of any structure, and other minimum requirements. Any proposed variation to these requirements requires a "variance" from the zoning board.

  • Typically, the Building Inspector will inform any real estate owner if a zoning application is needed for any proposed project. 

  • Owners of property that have a grandfathered “nonconforming” use or dimensional layout should be especially careful about making any changes to their property.

  • In order to encourage business development, cities and towns sometimes engage in “spot zoning” in order to allow a business to build or expand within a residential district. 

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In General
Zoning and Building Permits
Boundary Disputes

Boundary Disputes

  • While many neighborhoods in Rhode Island’s larger cities were developed long ago in a grid pattern with easily delineated lots (such as 50’ of frontage by 100’ deep) with boundaries clearly marked by fences. Lot boundaries in rural areas and especially coastal areas that were formerly populated by beach cottages are another story.

  • Expensive surveys by certified land surveyors are used as evidence in boundary dispute cases, and even these surveys are subject to dispute because the “methodology” used by land surveyors can vary.

  • Under Rhode Island law, a property owner may acquire or lose deeded land through the process of “adverse possession”. When the land between two lots with different owners has been maintained and possessed exclusively by one owner for an unbroken period of 10 years, then that owner can claim right to the property by adverse possession, even if a land survey after the 10 year period determines that the area was actually part of the other property owner’s lot.  

  • Similar to “adverse possession”, the principle of “acquiescence” may be applied when a fence or other fixed boundary marker has existed for an unbroken 10-year period. In the event of a legal dispute, either abutting property owner may then ask the court to “declare” the fence as the legal boundary between the two lots.

Purchase and Sales Agreements

Purchase and Sales Agreements

  • Prospective buyers of real estate often make the mistake of signing a purchase and sales agreement and paying a substantial deposit of thousands of dollars without first having the document reviewed by an attorney. A “P & S” is a binding contract and should be entered into carefully.

  • For example, the P & S must state any reasons why the buyers may back out, such as due to lack of qualification for a mortgage, or failure of one or more home inspections, or if any deed or zoning restrictions prohibit any intended use of the property.

  • Buyers should see a “red flag” when the sellers refuse to put in writing any oral representations concerning the property, whether those representations were made by a real estate agent or the owners themselves.

  • After the deposit has been paid, if a dispute arises and the buyers want to back out of the deal but the seller refuses, the buyers deposit funds can be effectively locked up until the dispute is resolved. If a lawsuit is required to resolve the dispute, several years can easily pass before the trial and any appeal are finally resolved.

  • When a closing takes place, the P & S is said to “merge” with the deed. Effectively, this means that the P & S no longer provides any protection to the buyers once the closing takes place and the deed is delivered.

  • Another source of potential dispute in a real estate transaction involves the appraisal or the results of any inspections. A faulty appraisal or erroneous inspection can cause the buyers to rely upon untrue representations of the property, such as the condition of the property, market value, zoning classification, suitability for a particular use, or other fact that the buyers were relying upon.

  • While buyers can typically choose their own home inspector(s), generally only cash buyers can choose the appraiser; otherwise, the appraiser is selected from a list. 

  • Some issues that may arise include: Are all separate living units in a multi-unit property “legal”?  In the case of a property serviced by a septic system or cesspool, will any upgrades or sewer hook-up fees be required by law in the future? Are there any costly improvements that will be required in the near future to bring the property in conformance with  fire code provisions? Is lead paint or radon gas a potential problem?

Deeds, Deeded Rights & Restrictions

Deeds, Deeded Rights & Restrictions

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Types of Deeds:

  • The two most common deed types recognized by Rhode Island law are the Quitclaim Deed and the Warranty Deed.

  • A Quitclaim Deed is mostly used to for the purpose of transferring property among family members. A person signing a Quitclaim Deed is only agreeing to transfer any ownership interest he or she has in the real estate described, if any.

  •  A Warranty Deed, on the other hand, “warrants” that the person transferring the property actually owns the property, and can be held legally liable if any defect in the ownership title is found after the sale.

  • Title insurance is an insurance policy that protects buyers and sellers, as well as banks holding a mortgage interest in the property, when a title defect is found. Since the stakes of a title defect are potentially large (up to the whole value of the real estate), the one-time cost to the buyer for obtaining a title insurance policy that protects both the bank (when a mortgage loan is used to purchase the property) and the owner (to cover any equity the owner has over and above the mortgage payoff amount) is a good investment.

 

Life Estates:

  • A person may transfer real estate to one or more persons but retain a “life estate” in the property. In such a case, the person retains ownership of the property for the remainder of his or her lifetime, and upon death the property transfers automatically to the other(s). 

  • A life estate is frequently used as an estate planning tool whereby the owner, usually a parent, puts his or her children on the title to the property using a Quitclaim Deed and reserves a life estate. The transfer is complete when the deed is recorded and the owner then owns only the property for his or her lifetime, but has relinquished the “remainder” of the property. In such a case, the owner is no longer the sole owner, but owns the property along with the other(s) named on the deed. Thus, the owner can no longer sell the property unless all others named on the deed agree to sign a new deed.

  • Because life estates can’t easily be undone, other methods of transfer are often more suitable than retaining a life estate. For example, the property may be transferred to a trust in which the children are the named beneficiaries after the death of the owner. Using a family trust, the owner can retain the power to change beneficiaries or alter the share going to any one beneficiary. Thus, when flexibility is a requirement, trusts are often preferable.  

 

​Deed Restrictions:

  • Some deeds contain restrictions that can limit the use of the property. For example, deeded or recorded restrictions may limit the kinds or sizes of structures that can be built, limit the location of any structures, provide common roads and easements for the use of others, prohibit the types of activities that can be conducted on the property, or create a homeowners association that each owner must contribute to.

  • Any person interested in purchasing any property that is subject to deeded restrictions should carefully review the restrictions to ensure that the restrictions do not prohibit any intended use of the property. A copy of the restrictions can be obtained from the attorney who performs the “title search” of the property.

Planning & Development

Planning & Development

  • Developing a tract of land, such as a former farm, into a subdivision of similarly-styled homes that are subject to common deed restrictions, requires special permitting and review by the local planning board. Such a development may be for a retirement community, low-income housing, or to convert a former mill into residential condos. Or, the project may be “mixed-use”, involving buildings with first level retail stores and upper level residential units. Or the project may be to create a manufacturing or “enterprise” zone.

  • In any case, a fairly detailed plan must be prepared that shows how the proposed development will not conflict with the existing zoning scheme or create traffic or other “public safety” problems in the neighborhood. Any developer must be prepared to spend a significant sum for architects, land use experts, traffic engineers, and other experts. Also, neighborhood resistance should be anticipated, even if many residents in the area are in favor of the development.

Fair Housing Laws

Federal & State Fair Housing Laws

  • Claims of illegal discrimination based upon fair housing laws usually arise in the context of the rental or sale of residential properties. For example, an owner of real estate may not discriminate in advertising a residential unit (apartment, condo, house, etc.) for rent or sale, or in declining to rent or sell a residential unit. Thus, property owners and/or their agents should be very careful to not discriminate, intentionally or not, against any prospective tenant or buyer on the basis of age (including 18-plus), race, color, national origin, religion, disability (mental or physical), familial or minor children status, sex (includes pregnancy and sexual harassment), marital status, sexual orientation, gender identity/expression, status as a victim of domestic violence, and housing status (homelessness).

  • The Rhode Island Commission for Human Rights often investigates claims of housing discrimination.

Landlord / Tenant Act

Rhode Island Residential Landlord / Tenant Act

  • Matters involving disputes between landlords and tenants, including evictions, are governed by the Rhode Island Residential Landlord and Tenant Act.

  • For example, the Act provides an expedited eviction process when a tenant is 15 days or more behind on payment of rent. In such a case, the landlord or attorney sends a “5-Day Demand” letter to the tenant on or after the 16th day in which rent is overdue. If the tenant still hasn’t paid the full rent within five days after the letter was sent, an eviction action may be commenced against the tenant. If so, an expedited trial date is automatically scheduled by the court for 9 days after the filing. Thus, a landlord can evict a tenant for nonpayment of rent in as little as about one month.

  • Evictions for other reasons are not expedited but are still governed by the Act, including a tenant “holding over” beyond the agreed rental period or after the date of termination of tenancy as indicated in a timely notice to the tenant, or for violation of a provision in a rental agreement.

  • Under the Act, tenants also have rights, including the right to “quiet enjoyment” of the rental unit, the right to repairs of any condition that may make the rental unit “uninhabitable”, the right to not have any utilities turned off or other “self help” by the landlord, and the right to at least 30-days notice of termination of a month-to-month tenancy.

  • A landlord may require payment of the first months’ rent and a security deposit not in excess of the first month’s rent prior to move-in.

  • Claims of minimum housing violations, which relate to the condition of the residential unit, are generally investigated by the town or city building inspector or office or minimum housing.

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