Before You Buy a New Home: Check the Setbacks and Easements First

That big backyard may not be as usable as it looks.

Over the last several years, I have been running into a problem more and more often when meeting homeowners about new patio covers and other backyard improvements.

The house is brand new. The backyard looks plenty large enough. The homeowner wants a patio cover, pergola, outdoor kitchen, pool, workshop, ADU or another improvement.

Then we start looking at the property restrictions.

There may be an unusually large rear-yard setback. There may be a drainage, utility, access or other easement running through a significant portion of the backyard. Sometimes there are several restrictions stacked on top of one another.

The result can be surprising:

A homeowner can own a large backyard and still have very little area where a permanent structure can legally be built.

I have now met with multiple homeowners who purchased new construction homes without realizing these restrictions existed or understanding what they meant. In some cases, the restriction makes the patio cover they expected to build after moving in extremely difficult or legally impossible.

That is something I believe every new-home buyer should understand before signing the purchase contract, not after moving in.

A Property Line Is Not the Same as a Buildable Line

This is probably the biggest misunderstanding.

You may own the property all the way to the rear fence, but that does not necessarily mean you can build all the way to that fence.

Several different restrictions can affect where a structure may be placed:

• City or county building setbacks

• Recorded utility easements

• Drainage easements

• Sewer or water easements

• Access easements

• HOA restrictions

• Tract-specific development standards

• Fire-access requirements

• Building separation requirements

• Recorded conditions placed on the subdivision

Sometimes the normal setback is fairly easy to work around.

The problem occurs when a particular lot has a much larger setback or a substantial easement running across the rear of the property.

Imagine purchasing a home with 25 or 30 feet between the house and the rear property line. It looks like an excellent backyard.

Then you discover that a large portion of that space cannot be used for the structure you had planned.

Suddenly a large backyard isn't really a large buildable backyard.

“It Was in the Paperwork” Isn't the Same as Understanding It

New-home buyers receive an enormous amount of paperwork.

Buried somewhere among the purchase agreement, preliminary title report, subdivision documents, CC&Rs, disclosures and other documents may be information about easements, setbacks or use restrictions.

Technically providing a document and clearly explaining what that document means to the buyer are two very different things.

The California Department of Real Estate specifically recognizes the importance of information involving easements, zoning, use restrictions and unusual setbacks in residential subdivisions.

That makes sense.

If an easement or setback removes a substantial portion of a backyard from future construction, that information can dramatically affect how a buyer intends to use the property.

In my opinion, a restriction that prevents a homeowner from building a patio cover, pool, ADU or other normal backyard improvement deserves to be pointed out clearly and in plain English.

Something as simple as:

“This property has a 20-foot rear easement. Permanent structures may be prohibited within this area.”

would get a buyer's attention considerably better than another line buried on page 46 of a document packet.

Don't Assume the Model Home's Backyard Can Be Duplicated on Your Lot

Model homes are designed to sell houses. Beautiful patios, outdoor kitchens, pools, fire pits, landscaping and shade structures help buyers picture themselves living there. But the model home's lot may not have the same easements, setbacks, grading conditions or HOA restrictions as the lot you are actually purchasing.

Before assuming you can recreate the model-home backyard, ask: Can these same improvements legally be built on my specific lot? Not somewhere in the development. Not on the model. On your exact lot.

Ask to See the Actual Plot Plan

One of the smartest things a new-home buyer can request is a copy of the plot plan or other plan showing the home on the lot. Do not just look at the dimensions of the property. Look for property lines, building setback lines, easements, drainage areas, slopes and retaining walls.

Then ask one very specific question: “Show me exactly where I could legally build a patio cover, pool, ADU or other permanent backyard structure on this lot.”

Other Things New-Home Buyers Frequently Overlook

Setbacks and easements are not the only surprises that can affect what you can do with a new property. Review HOA architectural restrictions, Mello-Roos and special assessments, future HOA costs, solar agreements, drainage and grading restrictions, utility equipment and easements, retaining walls and slopes, fire-hazard and insurance issues, future development around the community, RV and trailer parking, and the feasibility of pools, ADUs, workshops and sheds.

What About Building a Patio Cover Without a Permit?

Homeowners need to understand the risk. Modern permit records, online mapping and readily available aerial imagery make property improvements much less invisible than they once were. Neighbor complaints, later permit applications, refinancing, insurance issues or the eventual sale of the property can also bring unpermitted construction to light.

In Menifee, patio covers are specifically identified as improvements requiring permits, and the city warns that unpermitted work may have to be modified, brought into compliance or removed. If the structure was built inside an area where it was never allowed, obtaining an after-the-fact permit may not solve the problem. The answer can still be: Move it or remove it.

My Advice Before Buying a New Construction Home

Before purchasing a new home, particularly if the backyard is important to you, ask for the documents that affect how the property can actually be used. Ask what the front, side and rear building setbacks are for the specific lot; whether there are easements; whether permanent structures are allowed inside them; what HOA restrictions apply; whether drainage swales exist; what special taxes apply; what is planned around the community; and where a patio cover, pool or ADU can legally be built. Get important answers in writing whenever possible.

Consider Having the Lot Reviewed Before You Buy

People routinely pay for home inspections before purchasing an older home. With new construction, the structure may be brand new, but the lot itself deserves due diligence too. If your future plans include a substantial patio cover, pool, ADU, detached garage, workshop or outdoor living area, it can be worthwhile to have the site documents reviewed before you become committed to the purchase.

The Bottom Line

A backyard should not be judged only by how large it looks. What matters is how much of it you can actually use for what you intend to build.

SAE Builders designs and builds patio covers and outdoor living improvements throughout Menifee, Murrieta, Temecula, Winchester, Wildomar, Lake Elsinore and surrounding Southern California communities. Before designing a project, we look at the practical issues that can determine whether it can actually be built, including available space, setbacks, easements, existing conditions and permitting requirements.

SAE Builders — Built for a Lifetime.

This article is based on construction experience and is provided for general informational purposes. It is not legal, title, surveying or real-estate advice. Property restrictions vary by parcel and jurisdiction. Buyers should verify applicable requirements with the appropriate city or county, title company, HOA and qualified real-estate or legal professionals before purchasing or developing property.