HomeMy WebLinkAboutA010 - legal opinion no. 48 LEGAL OPINIOI; N0. 48
DATE: January 21, 1980
SUBJECT: Zoning Protests
REQUESTED BY: Pat Switz, Director of Community Development
QUESTION: Is someone who has sold their land on contraV4L!„[y
an "owner" within the meaning of the protest-
provision of Sec. 414. 5 Code of Iowa?
ANSWER: No.
JAN 2 1 y•��
ANALYSIS
A contract of sale represents an intent by the
vendor to transfer an interest in real estate to the vendee.
The
" . . . contract of sale divests the interest. of the
vendor in the real estate from the date of delivery
of the instrument" Marshall ' s Iowa Title Standards
and Opinions (Second Edition)at Sec. B .
Although the legal title will remain as a matter of record in
the name of the vendor until all performance by the purchaser
under the contract is completed, this is regarded as merely
security for the vendee' s performance of the contract and
not as an interest in the real estate.
Although the above stated maxim of real estate law
is not necessarily depositive of the question under the zoning
statute, it is , I feel, very persuasive. The precise question
has never been litigated in Iowa. However, in the state of
Illinois , under statutes substantially the same as our own,
it was held that contract vendees have the status of the owner
insofar as the right of protest is concerned. Chapman vs .
County or v.'ills , 55 Ill. 2d 524, 304 N.1-.. 2d 287 (1973) .
LEG:L OPINION N0. 48 21 January 21 , 1980
Therefore, it is my conclusion that if ever pre-
sented with the issue, the Iowa Supreme Court would almost
certainly conclude that the contract purchaser and the con-
tract purchaser alone is the person entitled to exercise the
rights of the "owner" within the meaning of Sec. 414. 5 Code
of Iowa. Therefore, any signed protests received from a
person who has no interest in the land other than as a con-
tract seller should not be considered in computing the per-
centage of protests under Section 414. 5 .
Respectfully submitted,
John R. Klaus
City Attorney
cc Gina Bicknese/
R. Bartolotta
Don Smith
Pauline Williams
PETITION TO : AMES CITY COUNCIL
AMES PLANNING & ZONING COMMISSION
SUBJECT: STONE BROOKE SUBDIVISION
We, the undersigned, who are residents of the Top-0-
Hollow Road neighborhood area, wish to inform the Ames City
Council and the Ames Planning and Zoning Commission that we
have no objection to the applications of C & B Investments
(Charles Gray and Bill Allen) now pending before you for
(1) rezoning of some 66 acres from A-1 (Agricultural) to
R-1 (Single Family Dwelling) and for (2) approval of its
206-unit PUD development plan for Stone Brooke Subdivision.
Signature Ames Address Date
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