A student asked me a great question in class this week: if a business is operating as a nonconforming use and the owner sells the property, can the buyer keep the business running, or does the property now have to follow the current zoning? In most North Carolina towns, a nonconforming use stays with the property, not the owner. But there are three ways a buyer can lose it, and they matter a lot.
What a nonconforming use is
A nonconforming use is a use that was legal when it started but doesn’t fit the zoning that applies today. Picture a small auto shop that opened decades ago, before the area was rezoned residential. The town lets it continue (“grandfathers” it), but it doesn’t want the use to grow or last forever.
Does a nonconforming use transfer to a new owner?
Generally, yes. Zoning regulates how land is used, not who owns it. Cary’s Land Development Ordinance says it plainly: changes of ownership, tenancy or management of an existing nonconformity are permitted, but the nonconformity stays subject to the same rules (Cary LDO, Section 10.1.4). The buyer steps into the seller’s shoes, limits included.
Three ways a buyer can lose a nonconforming use in Cary
- It stops for too long. If the nonconforming use is discontinued for 180 calendar days or more, the property can only be used for a conforming use after that (Section 10.3.1). A long vacancy between the seller closing the business and the buyer reopening it can end the grandfathered status.
- It grows too much. Expansions are limited; in Cary an expansion generally can’t exceed 25% of the area of the existing nonconforming use, with some exceptions (Section 10.1.8).
- The building is destroyed. If the use or structure is destroyed by more than 50% of its replacement cost, it can’t be re-established unless it’s brought into conformity (Section 10.1.6).
Other Triangle towns and counties have their own versions of these rules with different time limits and percentages, so always check the local ordinance for the specific property.
What buyers should do before closing
- Ask the town’s planning staff to confirm the property’s nonconforming status in writing.
- Find out when the use last operated and plan to keep it running, or reopen quickly, after closing.
- Get any expansion or renovation plans reviewed before you’re under contract, not after.
- Use your due diligence period for this research, and talk with a real estate attorney about the details.
For sellers, the same facts affect value. A buyer who learns the use has been dark for five months is buying a very different property than one who sees a business open the day they close. If you’re weighing a sale, here’s how I approach what a property is worth in Cary.
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Mike Hall, The Triangle Real Estate Professor, is a broker with First Flight Realty in Cary, NC, and an NCREC-approved real estate instructor. This post is general information, not legal advice. Cary is updating its Land Development Ordinance, so confirm the current rules with the Town of Cary.
