Guidelines: ALTA Endorsement 3.3 (Zoning - Completed Improvement - Non-Conforming Use)

Explanation:

This endorsement 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.

ALTA 3.3-06 is designed to be issued with a 2006 ALTA Loan or Owner's Policy.  ALTA 3.3 (07-01-2021) contains modifications to align the endorsement to the terms of the 2021 ALTA Loan and Owner’s Policies and is designed to be issued with the 2021 policies. 

The 2024 revision is designed to address coverage for a permitted non-conforming improvement, coverage for specified zoning classification, and to allow for the checkbox selection of the specific zoning matters that will be covered if removal or alteration results, rather than automatic inclusion of a blanket list of covered zoning matters.

Where available, use the version of the endorsement designed for the applicable policy, unless approved by a Stewart Title Guaranty Company underwriter.  It is not necessary to indicate “-06” or the parenthetical (date) on the endorsement attached to the policy.

Underwriting Requirements:

1. Secure and review a written certification or building permit from the applicable zoning department or agency (municipality or county), or certification from the surveyor, 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. Secure 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 surveyor 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 Section 2(a) of the endorsement, insert/describe the existing non-conforming use. We prefer that Section 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 confirm compliance with any of Items (i) – (v) in Section 2(b) (e.g., parking, etc.), you should delete such item(s) before issuing this endorsement.

7. If you are asked to add "number of loading docks" or "number of loading berths", you should confirm loading docks in the same manner as you confirm parking spaces.

8. 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.